SECOND DIVISION

[G.R. No. 144697. December 10, 2003]

RODOLFO ALARILLA, SR., ROSARIO G.

ALARILLA, RODOLFO G. ALARILLA, JR.,
RODERICK G. ALARILLA, RAINIER G.
ALARILLA, RANDY G. ALARILLA, MA.
ROSELLE G. ALARILLA-PARAYNO and
ALEJANDRO PARAYNO, JR., petitioners,
vs. REYNALDO C. OCAMPO,respondent.
DECISION
CALLEJO, SR., J.:

This is a petition for review on certiorari of the

Decision[1] of the Court of Appeals in CA-G.R. CV No.
53559 affirming the Orders of the Regional Trial Court of
Manila, Branch 4, dated February 8, 1996 and May 20,
1996 in LRC Cad. Record No. 291.
The Antecedents
Spouses Isidro de Guzman and Andrea E. Enriquez
were the owners in fee simple of a parcel of land, with an
area of 128.40 square meters located in Fabie Street,
Pedro Gil, Paco, Manila, and covered by Transfer
Certificate of Title No. 94754 of the Register of Deeds of
Manila. The Spouses De Guzman thereafter constructed
a house thereon, with postal address at No. 1526 1st
Street, Fabie Estate, Pedro Gil, Paco, Manila.

On March 17, 1982, Andrea died intestate and was

survived by Isidro and their daughter Rosario de Guzman,
married to Rodolfo Alarilla, Sr. They executed a real
estate mortgage over the property in favor of Spouses
Reynaldo C. Ocampo and Josephine C. Llave as security
for the payment of their loan. On July 15, 1995, Isidro de
Guzman died intestate and was survived by Rosario de
Guzman and her children by Rodolfo Alarilla, Sr. When
the mortgagors-debtors failed to pay the loan despite
demands, the Spouses Ocampo filed a petition for the
extrajudicial foreclosure of the real estate mortgage with
the Clerk of Court of the Regional Trial Court of Manila,
who was also the Ex-Officio City Sheriff. The property
was sold at public auction on July 13, 1994 with the
Spouses Ocampo as the highest bidder for P515,430.76.
The Ex-Officio Sheriff executed a certificate of sale over
the property also on the said date. The certificate of sale
was registered with the Office of the City Register of
Deeds on September 2, 1994. Upon the failure to redeem
the property, the Spouses Ocampo executed an affidavit
of consolidation of title. Transfer Certificate of Title No.
224439 was issued to and under their names on October
3, 1995.
On October 17, 1995, Spouses Rodolfo Alarilla, Sr. and
their children: Spouses Alejandro Parayno, Jr. and Ma.
Roselle Alarilla, Rodolfo Alarilla, Jr., Roderick G. Alarilla,
Rainier Alarilla and Randy Alarilla filed a complaint
against the Spouses Ocampo and the Ex-Officio Sheriff
with the Regional Trial Court of Manila. The complaint,
docketed as Civil Case No. 95-75769, alleged inter alia
that (a) by virtue of the Family Code of the Philippines,
the property sold at public auction was constituted as a
family home; (b) Isidro de Guzman failed to liquidate the
family home after the death of Andrea as required by the

Family Code of the Philippines, which rendered the real

estate mortgage executed in favor of the Spouses
Ocampo null and void; (c) upon the demise of Isidro de
Guzman on July 15, 1995, the plaintiffs depended on their
parents, the Spouses Rodolfo Alarilla, Sr. for support; (d)
the plaintiffs offered to redeem the property for
P356,427.91 to the Spouses Reynaldo Ocampo before the
lapse of the one-year redemption period, but the latter
refused to accept the same; (e) the Sheriff sold the
property for an amount in excess of P401,162.96, the
correct amount owed the plaintiffs, thus rendering the
sale null and void; (f) the plaintiffs offered to redeem the
property for the correct amount due on September 1,
1995, but the defendants refused to accept the same;
hence, the period for redemption had not yet expired.
The plaintiffs prayed for the issuance of a writ of
preliminary injunction to enjoin the sheriff from
implementing the writ of possession issued by the RTC,
Branch 4. The plaintiffs, thus, prayed that after due
proceedings:
WHEREFORE, and based on the foregoing premises, plaintiffs most
respectfully pray that:
A.
Judgment be rendered declaring the Certificate of Sale and any Deed
for that matter that is subsequently issued as null and void;
B.
The defendants be ordered to pay the plaintiffs the sum of Three
Hundred Thousand Pesos, Philippine currency, plus the additional sum of
P45,000.00 to answer for exemplary damage and actual expenses incurred in
maintaining the suit, respectively;
C.
In said judgment, an order be issued making the injunction earlier
issued permanent;
D.
Declaring also that the Family Home comprised of Lot 21 and plaintiffs
residence thereat be declared free from any encumbrances, foreclosure sale,
Certificate of Sale and Definite Deed of Sale.[2]

On November 27, 1995, Reynaldo Ocampo filed a

petition for a writ of possession in LRC Cad. No. 291 with
the Regional Trial Court of Manila, Branch 4. There was
no opposition to the petition. The petitioner adduced
evidence ex-parte in support thereof and on February 8,
1996, the court issued an order granting the petition and
a writ of possession.
The plaintiffs filed an amended complaint praying that
after due proceedings, judgment be rendered in their
favor, thus:
WHEREFORE, and foregoing premises considered, the plaintiffs most
respectfully pray that:
A.
Judgment be rendered declaring the Certificate of Sale, the Definite
Deed of Sale and the Transfer Certificate of Title No. 224439 issued to the
defendants as null and void;
B.
In [the] same judgment, an order cancelling Transfer Certificate of Title
No. 224439 in the name of said defendants be issued to the Register of
Deeds, City of Manila;
C.
The defendants shall be ordered also to pay the plaintiffs the damages
in the total sum of FOUR HUNDRED THIRTY-SIX (P436,000.00) THOUSAND
PESOS, Philippine currency;
D.

The injunction earlier issued be ordered to be permanent;

E.
In [the] said judgment, the Family Home of the plaintiffs comprised as
Lot 21 and the plaintiffs residence thereat be declared free from any
encumbrances, foreclosure sale, Certificate of Sale, Definite Deed of Sale,
attachment and the null and void Transfer Certificate of Title No. 224439
aforementioned and any other document that may later on be shown as
affecting the same Family Home.[3]

In a parallel move, Rodolfo Alarilla, Sr. filed on March

25, 1996 in LRC Cad. No. 291 a motion to set aside the
Order dated February 8, 1996 and to dismiss the petition
for a writ of possession. On May 20, 1996, the court
issued an Order in LRC Cad. No. 291 denying the motion.
The movants appealed the order to the Court of Appeals

which rendered a Decision on February 17, 2000 affirming

the assailed order. The movants-appellants received a
copy of the decision of the CA on March 3, 2000. On
March 20, 2000, they filed a motion for the
reconsideration of the decision. On August 17, 2000, the
CA issued a resolution denying the motion of the
appellants. The latter received a copy of the said
resolution on September 4, 2000 and on September 19,
2000, the appellants, now petitioners, filed with this Court
a motion for extension of thirty days within which to file a
petition for review of the decision of the CA.
In their petition at bar, the petitioners assailed the
decision of the CA contending that:
THE COURT OF APPEALS HAS DECIDED A QUESTION OF SUBSTANCE NOT
HERETOFORE IN ACCORD WITH THE APPLICABLE DECISION OF THE SUPREME
COURT PARTICULARLY IN THE INTERPRETATION OF ART. 158 OF THE FAMILY
CODE IN RELATION TO ART. 153 THEREOF WHERE THE FAMILY RESIDENCE OF
PETITIONERS/BENEFICIARIES IS CONSTITUTED BY OPERATION OF LAW AS
FAMILY HOME.[4]

The petitioners assert that the real estate mortgage

executed by the Spouses De Guzman on March 9, 1993 is
null and void for failure to secure the conformity of the
beneficiaries of the family home as required by Article
158 of the Family Code of the Philippines. Although the
respondents are entitled to a writ of possession under
Section 7 of Act No. 3135, the said provision has been
repealed by the Family Code of the Philippines, as
provided for in Article 211 thereof. The petitioners also
contend that the petitioners cannot be ousted from the
property without the respondents filing an ordinary action
for the recovery of possession of the same, to give the
mortgagors an opportunity to be heard not only on the
issue of possession of the property but also on the
obligations of the mortgagors under the real estate

mortgage.
For its part, the CA noted that:
After expiration of the redemption period without redemption being made,
the writ must issue in order to place the buyer in possession of the
foreclosed property (Veloso, et al. vs. Intermediate Appellate Court, supra).
The right to such possession is absolute; it may be obtained thru a writ which
may be applied for ex-parte pursuant to Sec. 7 of Act No. 3135, as amended
(Navarra vs. Court of Appeals, 204 SCRA 850).
The subject property was not redeemed within the one-year period. Being
the successful bidder in the foreclosure sale, appellee had consolidated
ownership over the property, for which TCT No. 224439 was issued to him. In
IFC Service Leasing and Acceptance Corp. vs. Nera (19 SCRA 181), the
Supreme Court stated that if under Section 7 of Act No. 3135, the court has
the power, on the ex-parte application of the purchaser, to issue a writ of
possession during the period of redemption, there is no reason why it should
not also have the same power after the expiration of that period, especially
where, as in this case, a new title has already been issued in the name of the
purchaser.[5]

The respondents posit that the decision of the CA had

become final and executory when the petitioners filed
their motion for reconsideration of the decision only on
March 20, 2000 or seventeen (17) days after being
served a copy of the said decision. Furthermore, the CA
did not commit any reversible error in its decision on the
merits of the petition.
By way of riposte, the petitioners aver that March 18,
2000, the last day to file a motion for reconsideration of
the decision of the CA, fell on a Saturday. Hence, they
had until March 20, 2000, the first regular working day, to
file the said motion. However, the respondents did not
raise the issue in the CA, and raising the issue now in
this case is but a mere afterthought. In any event, the
petitioners argue that their failure to seasonably file their
motion for reconsideration is a mere procedural lapse;
hence, it should not prevail over their right to appeal from
the assailed decision of the CA.

The petition has no merit.

The parties raised two issues in this case: (a) whether
the petitioners motion for reconsideration of the decision
of the CA was filed out of time; and (b) on its merits,
whether the petition should be granted.
The petitioners motion for reconsideration
of the CA decision was filed within the
reglementary period therefor.
Section 1, Rule 22 of the Rules of Court, as amended,
and as applied in several cases, provides that where the
last day of the period for doing an act as provided by law
falls on a Saturday, a Sunday or a legal holiday in the
place where the court sits, the time should not run until
the next working day. In this case, the petitioners had
until March 18, 2000 within which to file their motion for
the reconsideration of the decision of the CA. Since
March 18, 2000 was a Saturday, the petitioners had until
March 20, 2000, the next working day thereafter, to file
their motion. The petitioners filed their motion on the
said date; hence, the motion was filed within the
reglementary period therefor.[6]
The petition, however, stands to
fail on the merits.
The petition is bereft of merit, and is hereby denied
due course.
First. The one-year period for the petitioners to
redeem the mortgaged property had already lapsed. Title
to the property had already been consolidated under the
name of the respondent. As the owner of the property,

the respondent is entitled to its possession as a matter of

right.[7] The issuance of a writ of possession over the
property by the court is merely a ministerial function.
There is no need for the respondent to file an action to
evict the petitioners from the property and himself take
possession thereof.
Second. Any question regarding the validity of the
mortgage or its foreclosure cannot be a legal ground for
refusing the issuance of a writ of possession. Regardless
of whether or not there is a pending action for the
nullification of the sale at public auction, or the
foreclosure itself, or even for the nullification of the real
estate mortgage executed by the petitioners over the
property, the respondent as purchaser at public auction is
entitled to a writ of possession without prejudice to the
outcome of the action filed by the petitioners with the
Regional Trial Court of Manila docketed as Civil Case No.
95-75769.[8]
Third. The writ of possession issued by the trial court
must be enforced without delay. It cannot be stymied or
thwarted by the petitioners by raising issues already
raised by them in Civil Case No. 95-75769.
Fourth. The petitioners did not even oppose the
petition for a writ of possession filed by the respondent in
the court a quo. Instead, they filed the complaint for the
nullification of the foreclosure proceedings, the sale at
public auction and the nullification of TCT No. T-224439
issued by the Register of Deeds of Manila in the name of
the respondent, with a plea for injunctive relief.
IN LIGHT OF ALL THE FOREGOING, the petition is
DENIED. Costs against the petitioners.
SO ORDERED.

Puno, (Chairman), Quisumbing, Austria-Martinez, and

Tinga, JJ., concur.
[1] Penned by Associate Justice Edgardo P. Cruz with Associate Justices

Ramon A. Barcelona and Marina L. Buzon concurring.

[2] Records, p. 35.
[3] Id. at 46-47.
[4] Rollo, p. 13.
[5] Id. at 29-30.
[6] Labad v. University of Southeastern Philippines, 362 SCRA 510

(2001).
[7] Manalo v. Court of Appeals, 366 SCRA 752 (2001); Banco Filipino

Savings and Mortgage Bank v. Intermediate Appellate Court,

142 SCRA 44 (1986).
[8] Ong v. Court of Appeals, 333 SCRA 189 (2000).

G.R. No. 75311 October 18, 1988

ROSITA ZAFRA BANTILLO, petitioner, vs.THE INTERMEDIATE
APPELLATE COURT and ELSA MANIQUIS-SUMCAD
respondent.
Littie Sarah A. Agdeppa for petitioner.

Isidro T. Barcelona for private respondent.

Lino R. Casabas Jr. collaborating counsel for private respondent.

FELICIANO, J.:
The subject of the present Petition for Review is the Decision

dated 3 April 1986 of the then intermediate Appellate Court in AC-G.R. CV 05774 (entitled
"Rosita Zafra Bantillo, for herself and in representation of the Heirs of Spouses Candida
Zafra. and Maria Pimentel Zafra, plaintiff-appellants, versus Elsa Maniquis-Sumcad,
defendant-appellee'). The appellate court affirmed a 2 August 1983 Order of Branch 2 of the
then Court of First Instance of North Cotabato, ordering (a) the dismissal of the Complaint in
Civil Case No. 161; and (b) the striking out of the Amended Complaint filed in the same case.

The case at bar originated from a Complaint for Reconveyance

(docketed as Civil Case No. 161), dated 19 April 1982, filed by petitioner Rosita Zafra Bantillo
against respondent Elsa Maniquis-Sumcad with the Court of First Instance of North Cotabato.
The action involved a 240 square meter parcel of land (Lot No. 63, BSD-11551) situated in
the poblacion of Midsayap, North Cotabato. In the Complaint, it was alleged that petitioner
Bantillo (plaintiff below) "is the surviving heir" of the deceased spouses, Candido Zafra and
Maria Pimental Zafra; that the Zafra spouses had occupied and possessed Lot No. 63 "under
claim of ownership since 1950;" that petitioner, as surviving heir and in representation of the
heirs of [the Zafra] spouses," had been in open and continuous possession and occupation of
Lot No. 63 ever since the death of the spouses; that by virtue of Original Certificate of Title
No. P35267 issued in the name of respondent Sumcad, respondent had claimed ownership of
the disputed land and had sought petitioner's removal therefrom; and that respondent had
rejected demands to reconvey the land to petitioner.

Respondent Sumcad (defendant below) filed a "Motion for Bill of

Particulars 3 in response to the complaint. In that motion, respondent Sumcad requested
that petitioner Bantillo be directed by the court: (a) 'to specify what kind of surviving heir
she is ...;" and (b) "to specify by what right or authority she represents the so-called 'heirs of
the spouses Candido Zafra and Maria Pimentel Zafra ... and [to show] the papers under
which she is authorized to represent them in court, and also (to specify and Identify these
other heirs by name and the nature of their heirship.'

On 16 June 1982, petitioner Bantillo questioned the propriety of

respondent Sumcad's motion. 4 Petitioner Bantillo alleged that the matters
mentioned in the "Motion for Bill of Particulars" were not essential to enable respondent
Sumcad to file an answer to the complaint, that such matters are not proper subjects of a
motion for bill of particulars.

The subsequent facts, which are stated in the appellate court's

decision presently under review, are not disputed:
In response to a motion for a bill of particulars, regarding the

complaint filed by the plaintiff, the latter's counsel manifested in

open court that she was willing to specify the names of the heirs
allegedly being represented by plaintiff Rosita Bantillo as well as
to submit the special power of attorney executed by said heirs in
plaintiffs favor. Hence, the court a quo issued the following Order
dated July 5, 1982:
This is a hearing on the motion for bill of particulars and the
opposition thereto. The counsel for the plaintiff agreed to specify
the names of the heirs and to submit a special power of attorney
executed by said heirs in favor of the first-named plaintiff, Rosita
Zafra Bantillo. After the amendments made by the counsel, the
counsel is directed to furnish the counsel for the defendant a copy
of the said amendments.
Defendant is given en (15) days from the receipt of the copy of
the amended complaint within which to file the defendant's
responsive pleading.
The pre-trial will be set as soon as the proper amendments [are]
submitted.
SO ORDERED. (P. 46, Records)
On September 3, 1982, counsel for the defendant filed a motion
to dismiss. In support of the motion, it was pointed out that the
plaintiff had not as yet submitted her amended complaint as
directed by the court. Neither had the plaintiff complied with the
July 5, 1982 Order of said court directing her to specify the other
Bantillo heirs and to produce the special power of attorney
authorizing her to represent their heirs in the action.
Plaintiff filed an Opposition to the Motion to dismiss. The
Opposition stated, among other things, "that the delay was due to
the fact that this Honorable Court (had) for quite a time no
presiding judge, so that even if said pleading be filed, it still could
not be acted upon." Attached to the Opposition was an amended
complaint. 5
Reacting to the Opposition, defendant on July 5, 1983 interposed

a Rejoinder with Motion to Strike Out/Dismiss Plaintiffs Pleadings,

pointing out therein that the plaintiffs compliance with the court's
Order was made more than one year from the issuance of the said
Order. Invoking Section l(c), Rule 12 of the Rules of Court which
grants a party only a ten-day period within which to respond to a
bill of particulars, the defendant denounced plaintiffs tardy
compliance as an outright sham and a mere ploy intended to
outsmart this Honorable Court and the parties.
Not to be outdone, plaintiff through her counsel filed a Rejoinder
to the Opposition to the Motion to Dismiss, arguing that the late
compliance to [sic] the lower court's July 5, 1982 Order was
excusable under Section 1, Rule 10 of the Rules of Court which
allows amendment of pleadings without regard for mere
technicalities.
On August 2, 1983, the court a quo issued the Order which is the
subject of this present Appeal. In this Order the lower court
decreed as follows:
WHEREFORE, the Court, finding the Motion to Strike Out/ Dismiss
Plaintiffs Pleadings, filed by the Defendant's Counsel meritorious,
grants the same and orders the dismissal of the complaint and
the striking out of the amended complaint, with costs.
SO ORDERED. (P. 49, Ibid.)
In her appeal, the plaintiff alleges five (5) errors purportedly
committed by the lower court. However, for purposes of resolving
the appeal, We deem it necessary only to consider the first two
(2) assignments of error, namely: The court a quo erred:
I. In striking [out] the amended complaint on the grounds:
A. That it must follow the agreement embodied in the Order of the
Court dated July 5, 1982;
B. That the amended complaint must be filed 'at anytime within
ten (10) days after it is served
II. In dismissing the complaint for plaintiffs failure to comply with

the Orders of the court.

xxx xxx xxx
The trial and appellate courts both held that dismissal of
petitioner Bantillo's complaint in this case was warranted as she
had been "guilty of an unreasonable delay in complying with the
July 5, 1982 Order of the (trial] court.' The appellate court cited in
this connection Section l(c) of Rule 12 of the Revised Rules of
Court under which petitioner Bantillo had ten (10) days from
notice of the trial court's Order of 5 July 1982or until 15 July
1982within which to comply with the directives contained in
that order. In addition, both courts held that the amended
complaint should have been filed, at the very least, within a
"seasonable" time and in a manner consistent with "[petitioner's]
agreement as embodied in the Order of the [trial] court dated July
5, 1982." Finally, it was noted that the alleged vacancy at Branch
18 of the Regional Trial Court (which succeeded Branch 2 of the
Court of First Instance) of North Cotabato at Midsayap lasted only
from 18 January 1983 until 29 March 1983, or for a period of just a
little over two (2) months. This latter circumstance further
convinced the two (2) courts that petitioner Bantillos amended
complaint, which was submitted to the trial court on 22 June
1983, had not been filed seasonably.
The present Petition for Review was received by this Court on 1
August 1986. Respondent filed an Answer 6 on 28 October 1986, to which
petitioner submitted a Reply. 7 In a Resolutions 8 dated 27 July 1987, the Court, without
giving due course to the Petition, required the parties to submit their respective Memoranda.

Petitioner Bantillo contests the application in this case of Section

1 of Rule 12 of the Revised Rules of Court, alleging once more that
the matters mentioned in respondent Sumcads disputed motion
are "not within the scope and ambit of a bill of particulars."
Petitioner also alleges that "there was really no bill of particulars
required of (petitioner)" by the trial court. Furthermore, it is
contended that Rule 10 of the Rules of Court is the applicable
provision here.
1. Section 1, Rule 12 of the Re Rules of Court reads, in part:

Section 1. Motion for bill of particulars.Before responding to a

pleading or, if no responsive pleading is permitted by these rules,
within ten (10) days after service of the pleading upon him, a
party may move for a more definite statement or for a bill of part
of any matter which is not averred with sufficient definiteness or
particularity to enable him properly to prepare his responsive
pleading or to prepare for trial. Such motion shall point out the
defects complained of and the details desired.
xxx xxx xxx
(Emphasis supplied)
Under this Rule, the remedy available to a party who seeks
clarification of any issue or matter vaguely or obscurely pleaded
by the other party, is to file a motion, either for "a more definite
statement" or for a bill of particulars. An order directing the
submission of such statement or bill, further, is proper where it
enables the party movant intelligently to prepare a responsive
pleading, or adequately to prepare for trial.
The title of the (original) Complaint in Civil Case No. 161 expressly
stated that petitioner Bantillo had then brought suit "for herself
and in representation of the Heirs of Spouses Candido Zafra and
Maria Pimentel Zafra." In paragraphs 2 and 3 of the Complaint,
petitioner Bantillo alleged her capacity personally to maintain the
judicial action for reconveyance, manifesting that she is the
"surviving heir" of the Zafra spouses, the alleged original owners
of the land under litigation. The Court notes, however, the
absolute lack of allegations in the Complaint regarding the
petitioner's capacity or authority to bring suit in behalf of her
alleged co-heirs and co-plaintiffs. On this matter, Section 4 of Rule
8 of the Revised Rules of Court specifically provides:
Section 4. Capacity.Facts showing the capacity of a party to sue
or be sued or the authority of a party to sue or be sued in a
representative capacity or the legal existence of an organized
association of persons that is made a party, must be averred. A
party desiring to raise an issue as to the legal existence of any
party or the capacity of any party to sue or be sued in a

representative capacity, shall do so by specific denial, which shall

include such supporting particulars as are peculiarly within the
pleader's knowledge. (Emphasis supplied)
Petitioner Bantillo having failed to allege in her Complaint a
factual matter which, under the Rules, must be alleged or
pleaded, respondent Sumcad was not unjustified in moving for
clarification of such matter. Knowledge of the identity or identities
of petitioner's alleged co-heirs and co-plaintiffs and, more
importantly, of the basis of petitioner's claimed authority to
represent the latter, would obviously be useful to respondent in
the preparation of a responsive pleading, respondent Sumcad
should be given sufficient opportunity intelligently to contest
these matters and possibly to raise the same as issues in her
Answer. The Court hence believes that the "Motion for Bill of
Particulars" filed by respondent Sumcad was not improper.
2. The first paragraph of the disputed 5 July 1982 Order (quoted
supra, pp. 3-4) of the trial court in Civil Case No. 161 states that
petitioner Bantillo, through counsel, had agreed to specify the
names of her alleged co-heirs and to submit a special power of
attorney authorizing her to represent said co-heirs in the action
for reconveyance. Petitioner's counsel was also directed to furnish
respondent's counsel with a copy of the corresponding
"amendments." The second paragraph of the Order continued:
Defendant is given fifteen (15) days from receipt of the copy of
the amended complaint within which to file the defendant's
responsive pleadings. (Emphasis supplied)
As pointed out by petitioner in her Memorandum, the trial court
did not in its Order of 5 July 1982 expressly direct petitioner
Bantillo to submit a bill of particulars. What was in fact required of
petitioner was an amended complaint, which would incorporate
the "amendments" mentioned in the first paragraph of the Order.
This singular circumstance, however, does not preclude
application in this case of Rule 12, Section l(c) of which provides:
xxx xxx xxx

(c) Refusal.If an order of the court to make a pleading more

definite and certain or for a bill of particulars is not obeyed within
ten (10) days after notice of the order or within such other time
as the court may fix, the court may order the striking out of the
pleading to which the motion was directed or make such other
order as it deems just. It may, upon motion, set aside the order, or
modify it in the interest of justice. (Emphasis supplied)
Under the above provision, the court may upon motion in
appropriate cases direct the adverse party (a) to file a bill of
particulars, or (b) to make the pleading referred to in the motion
more definite and certain, either by amending or supplementing
the same. The trial court's disputed Order of 5 July 1982 falls
squarely within the second category. As the Order itself did not
specify the period for compliance with its terms, petitioner
Bantillo was bound to comply therewith within ten (10) days from
notice thereof, i.e., on or before 15 July 1982.
3. Petitioner Bantillo's reliance on Section 2, Rule 10 of the
Revised Rules of Courtwhich allows amendment of pleadings
once as a matter of course is served.is misplaced. That
provision does not apply in situations where it is the court itself
that orders a party litigant to amend his or her pleading. Where,
as in the case at bar, the trial court orders the amendment after a
motion for a bill of particulars has been filed by the adverse party
and heard by the court, the applicable provision is Section 1 of
Rule 12 of the Rules of Court: the amended pleading must be filed
within the time fixed by the court, or absent such a specification
of time, within ten (10) days from notice of the order.
4. The record shows that petitioner Bantillo filed her Amended
Complaint with the trial court only on 22 June 1983, or more than
eleven (11) months after the reglementary period of ten (10) days
had expired. The trial judge found no merit in the reasons
advanced by petitioner Bantillo for such delay and dismissed the
Complaint, declaring that an "unreasonable length of time" had
already elapsed.
There is of course no question that petitioner's Amended
Complaint was filed out of time. Nonetheless the Court believes

that in the interest of substantial and expeditious justice,

the
Amended Complaint should not have been dismissed and ordered stricken from the record.
In the first place, the amendment of the original complaint consisted simply of deletion of
any reference to "other heirs" of the Zafra spouses as co-plaintiffs in the action for
reconveyance; petitioner, in other words, clarified that she alone was plaintiff and heir and
therefore was no longer suing also in a representative capacity. This amendment, in the
second place, imposed no substantial prejudice upon respondent Sumcad and was thus
formal in character. 10 As a matter of fact, Sumcad had not yet filed any responsive pleading
at all and had not disclosed the nature and basis of her own claim of ownership of Lot No.
63. The issues had not yet been joined. Thirdly, the Amended Complaint was already before
the trial court and it could have and should have proceeded with the case.

Alternatively, if it be assumed that the Amended Complaint was

properly dismissed, such dismissal should not, for the same
reasons of substantial and expeditious justice, be deemed as
having the effect of an adjudication upon the merits and hence
should be regarded as without prejudice to petitioner's right to refile her complaint in its amended form. Under this alternative
hypothesis, to require petitioner to re-file her complaint in a new
action, would appear little more than compelling her to go
through an Idle ceremony. Under either view, therefore, the trial
court should have admitted the Amended Complaint instead of
striking it off the record. Public policy favors the disposition of
claims brought to court on their merits, rather than on any other
basis. 11 The trial court's discretion should have been exercised comformably with that
public policy.

ACCORDINGLY, the appellate court's Decision appealed from is

REVERSED and the Regional Trial Court, Branch 18, of North
Cotabato at Midsayap, is DIRECTED to admit petitioner's
Amended Complaint and promptly to resume proceedings in Civil
Case No. 161. This Resolution is immediately executory. No
pronouncement as to costs.
Fernan, C.J., Gutierrez, Jr., Bidin and Cortes, JJ., concur.

SECOND DIVISION
REPUBLIC OF THE
G.R.
No.
PHILIPPINES,
148154
represented
by
the
Presidential
Commission
on Present:
Good Government
(PCGG),
QUISUMBING,
J.,
Petitioner,
Chairperson,
CARPIO
MORALES,
- versus TINGA,
VELASCO, JR.,
SANDIGANBAYAN
and
(Second Division)
REYES,* JJ.
and FERDINAND R.
MARCOS, JR. (as
executor of the
Promulgated:
estate
of
FERDINAND
E.
December 17,
MARCOS),
2007
Respondents.

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

RESOLUTION
QUISUMBING, J.:
The propriety of filing and granting of a
motion for a bill of particulars filed for the estate
of a defaulting and deceased defendant is the
main issue in this saga of the protracted legal
battle between the Philippine government and
the Marcoses on alleged ill-gotten wealth.
This special civil action for certiorari[1]
assails two resolutions of the Sandiganbayan
(anti-graft court or court) issued during the
preliminary legal skirmishes in this 20-year case:
[2] (1) the January 31, 2000 Resolution[3] which
granted the motion for a bill of particulars filed by
executor Ferdinand R. Marcos, Jr. (respondent) on
behalf of his fathers estate and (2) the March 27,
2001
Resolution[4]
which
denied
the
governments motion for reconsideration.
From the records, the antecedent and
pertinent facts in this case are as follows:
The administration of then President

Corazon C. Aquino successively sued former

President Ferdinand E. Marcos and former First
Lady Imelda Romualdez-Marcos (Mrs. Marcos),
and their alleged cronies or dummies before the
anti-graft court to recover the alleged ill-gotten
wealth that they amassed during the former
presidents 20-year rule. Roman A. Cruz, Jr.
(Cruz), then president and general manager of
the Government Service Insurance System
(GSIS); president of the Philippine Airlines (PAL);
chairman and president of the Hotel Enterprises
of the Philippines, Inc., owner of Hyatt Regency
Manila; chairman and president of Manila Hotel
Corporation; and chairman of the Commercial
Bank of Manila (CBM), is the alleged crony in this
case.
On July 21, 1987, the Presidential
Commission on Good Government (PCGG),
through the Office of the Solicitor General, filed
a Complaint[5] for reconveyance, reversion,
accounting, restitution and damages alleging
that Cruz and the Marcoses stole public assets
and invested them in several institutions here

and abroad.
Specifically, Cruz allegedly
purchased, in connivance with the Marcoses,
assets whose values are disproportionate to
their legal income, to wit: two residential lots
and two condominiums in Baguio City; a
residential building in Makati; a parcel of land
and six condominium units in California, USA;
and a residential land in Metro Manila. The
PCGG also prayed for the payment of moral
damages of P50 billion and exemplary damages
of P1 billion.
On September 18, 1987, Cruz filed an
Omnibus Motion to Dismiss, strike out
averments in the complaint, and for a bill of
particulars.[6]
On April 18, 1988, the court ordered that
alias summonses be served on the Marcoses
who were then in exile in Hawaii.[7] The court
likewise admitted the PCGGs Expanded
Complaint[8] dated April 25, 1988, then denied
Cruzs omnibus motion on July 28, 1988 after
finding that the expanded complaint sufficiently
states causes of action and that the matters

alleged are specific enough to allow Cruz to

prepare a responsive pleading and for trial.[9]
On September 15, 1988, Cruz filed his answer
ad cautelam.[10]
On November 10, 1988, the alias
summonses on the Marcoses were served at
2338 Makiki Heights, Honolulu, Hawaii.[11] The
Marcoses, however, failed to file an answer and
were accordingly declared in default by the antigraft court on April 6, 1989.[12] In Imelda R.
Marcos, et al. v. Garchitorena, et al.,[13] this
Court upheld the validity of the Marcoses default
status for failure to file an answer within 60 days
from November 10, 1988 when the alias
summonses were validly served in their house
address in Hawaii.
On September 29, 1989, former President
Marcos died in Hawaii. He was substituted by
his estate, represented by Mrs. Marcos and their
three children, upon the motion of the PCGG.
[14]
On July 13, 1992, Mrs. Marcos filed a Motion
to Set Aside Order of Default,[15] which was

granted by the anti-graft court on October 28,

1992.[16] InRepublic v. Sandiganbayan,[17]
this Court affirmed the resolution of the antigraft court, ruling that Mrs. Marcos had a
meritorious defense, and that failure of a party
to properly respond to various complaints
brought
about
by
the
occurrence
of
circumstances which ordinary prudence could
not have guarded against, such as being barred
from returning to the Philippines, numerous civil
and criminal suits in the United States,
deteriorating health of her husband, and the
complexities of her legal battles, is considered
as due to fraud, accident and excusable
negligence.[18]
On September 6, 1995, Mrs. Marcos filed
her answer,[19] arguing that the former
President Marcos wealth is not ill-gotten and
that the civil complaints and proceedings are
void for denying them due process. She also
questioned the legality of the PCGGs acts and
asked for P20 billion moral and exemplary
damages andP10 million attorneys fees.

On January 11, 1999, after pre-trial briefs

had been filed by Cruz, the PCGG, and Mrs.
Marcos, the court directed former President
Marcos children to appear before it or it will
proceed
with
pre-trial
and
subsequent
proceedings.[20]
On March 16, 1999, respondent filed a
Motion for Leave to File a Responsive Pleading
as executor of his late fathers estate.[21] The
PCGG opposed the motion, citing as ground the
absence of a motion to set aside the default
order or any order lifting the default status of
former President Marcos.[22]
On May 28, 1999, the court granted
respondents motion:
xxxx
The Court concedes the plausibility of
the stance taken by the Solicitor General that
the default Order binds the estate and the
executor for they merely derived their right, if
any, from the decedent.
Considering
however the complexities of this case, and so
that the case as against the other defendants
can proceed smoothly as the stage reached
to date is only a continuation of the pre-trial
proceedings, the Court, in the interest of
justice and conformably with the discretion

granted to it under Section 3 of Rule 9 of the

Rules of Court hereby accords affirmative
relief to the prayer sought in the motion.
Accordingly, Ferdinand R. Marcos, Jr.[,]
as executor of the [estate of] deceased
defendant Ferdinand E. Marcos[,] is granted a
period of ten (10) days from receipt of this
Resolution within which to submit his
Responsive Pleading.
x x x x[23]

Respondent asked for three extensions

totaling 35 days to file an answer. The court
granted the motions and gave him until July 17,
1999 to file an answer. But instead of filing an
answer, respondent filed on July 16, 1999, a
Motion For Bill of Particulars,[24] praying for
clearer statements of the allegations which he
called mere conclusions of law, too vague and
general to enable defendants to intelligently
answer.
The PCGG opposed the motion, arguing
that the requested particulars were evidentiary
matters; that the motion was dilatory; and that
it contravened the May 28, 1999 Resolution
granting respondents Motion for Leave to File a
Responsive Pleading.[25]

The anti-graft court, however, upheld

respondent, explaining that the allegations
against former President Marcos were vague,
general, and were mere conclusions of law. It
pointed out that the accusations did not specify
the ultimate facts of former President Marcos
participation in Cruzs alleged accumulation of
ill-gotten
wealth,
effectively
preventing
respondent from intelligently preparing an
answer. It noted that this was not the first time
the same issue was raised before it, and
stressed that this Court had consistently ruled in
favor of the motions for bills of particulars of the
defendants in the other ill-gotten wealth cases
involving the Marcoses.
The fallo of the assailed January 31, 2000
Resolution reads:
WHEREFORE, the defendant-movants
motion for bill of particulars is hereby
GRANTED.
Accordingly, the plaintiff is hereby
ordered to amend pars. 9 and Annex A, 12
(a) to (e), and 19 in relation to par-3 of the
PRAYER, of the Expanded Complaint, to allege
the ultimate facts indicating the nature,
manner, period and extent of participation of

Ferdinand E. Marcos in the acts referred to

therein, and the amount of damages to be
proven during trial, respectively, within fifteen
(15) days from receipt of this resolution[.]
SO ORDERED.[26]

Not convinced by petitioners Motion for

Reconsideration,[27] the court ruled in the
assailed March 27, 2001 Resolution that the
motion for a bill of particulars was not dilatory
considering that the case was only at its pre-trial
stage and that Section 1,[28] Rule 12 of the
1997 Rules of Civil Procedure allows its filing.
In urging us to nullify now the subject
resolutions, petitioner, through the PCGG, relies
on two grounds:
I.
THE MOTION FOR BILL OF PARTICULARS
CONTRAVENES SECTION 3, RULE 9 OF THE
1997 RULES [OF] CIVIL PROCEDURE.
II.
THE MOTION FOR BILL OF PARTICULARS IS
PATENTLY DILATORY AND BEREFT OF ANY
BASIS.[29]

Invoking Section 3,[30] Rule 9 of the 1997

Rules of Civil Procedure, petitioner argues that
since the default order against former President

Marcos has not been lifted by any court order,

respondent cannot file a motion for a bill of
particulars. Petitioner stresses that respondent
did not file a motion to lift the default order as
executor of his fathers estate; thus, he and the
estate cannot take part in the trial.
Petitioner also contends that respondent
was granted leave to file an answer to the
expanded complaint, not a motion for a bill of
particulars. The anti-graft court should not have
accepted the motion for a bill of particulars after
he had filed a motion for leave to file responsive
pleading and three successive motions for
extension as the motion for a bill of particulars is
dilatory. Petitioner insists that respondent
impliedly
admitted
that
the
complaint
sufficiently averred factual matters with
definiteness to enable him to properly prepare a
responsive pleading because he was able to
prepare a draft answer, as stated in his second
and third motions for extension. Petitioner adds
that the factual matters in the expanded
complaint are clear and sufficient as Mrs. Marcos

and Cruz had already filed their respective

answers.
Petitioner also argues that if the assailed
Resolutions are enforced, the People will suffer
irreparable damage because petitioner will be
forced to prematurely divulge evidentiary
matters, which is not a function of a bill of
particulars. Petitioner maintains that paragraph
12, subparagraphs a to e,[31] of the expanded
complaint
illustrate
the
essential
acts
pertaining to the conspirational acts between
Cruz and former President Marcos. Petitioner
argues that respondent erroneously took out of
context the phrase unlawful concert from the
rest of the averments in the complaint.
Respondent, for his part, counters that this
Court had compelled petitioner in several illgotten wealth cases involving the same issues
and parties to comply with the motions for bills
of particulars filed by other defendants on the
ground that most, if not all, of the allegations in
the similarly worded complaints for the recovery
of alleged ill-gotten wealth consisted of mere

conclusions of law and were too vague and

general to enable the defendants to intelligently
parry them.
Respondent adds that it is misleading for
the Government to argue that the default order
against his father stands because the May 28,
1999 Resolution effectively lifted it; otherwise,
he would not have been called by the court to
appear before it and allowed to file a responsive
pleading. He stresses that the May 28, 1999
Resolution remains effective for all intents and
purposes because petitioner did not file a
motion for reconsideration.
Respondent likewise denies that his motion
for a bill of particulars is dilatory as it is
petitioners continued refusal to submit a bill of
particulars which causes the delay and it is
petitioner who is hedging, flip-flopping and
delaying in its prosecution of Civil Case No.
0006. His draft answer turned out not an
intelligent one due to the vagueness of the
allegations. He claims that petitioners actions
only mean one thing: it has no specific

information or evidence to show his fathers

participation in the acts of which petitioner
complains.
In its Reply,[32] petitioner adds that the
acts imputed to former President Marcos were
acts that Cruz committed in conspiracy with the
late dictator, and which Cruz could not have
done without the participation of the latter.
Petitioner further argues that conspiracies need
not be established by direct evidence of the acts
charged but by a number of indefinite acts,
conditions and circumstances.
In a nutshell, the ultimate issue is: Did the
court commit grave abuse of discretion
amounting to lack or excess of jurisdiction in
granting respondents motion for a bill of
particulars as executor of former President
Marcos estates considering that the deceased
defendant was then a defaulting defendant
when the motion was filed?
We rule in the negative, and dismiss the
instant petition for utter lack of merit.
Under the Rules of Court, a defending party

may be declared in default, upon motion and

notice, for failure to file an answer within the
allowable period. As a result, the defaulting
party cannot take part in the trial albeit he is
entitled to notice of subsequent proceedings.
[33]
The remedies against a default order are:
(1) a motion to set aside the order of default at
any time after discovery thereof and before
judgment on the ground that the defendants
failure to file an answer was due to fraud,
accident, mistake or excusable neglect and that
the defendant has a meritorious defense; (2) a
motion for new trial within 15 days from receipt
of judgment by default, if judgment had already
been rendered before the defendant discovered
the default, but before said judgment has
become final and executory; (3) an appeal
within 15 days from receipt of judgment by
default; (4) a petition for relief from judgment
within 60 days from notice of judgment and
within 6 months from entry thereof; and (5) a
petition
for
certiorari
in
exceptional

circumstances.[34]
In this case, former President Marcos was
declared in default for failure to file an answer.
He died in Hawaii as an exile while this case was
pending, since he and his family fled to Hawaii
in February 1986 during a people-power revolt in
Metro Manila. His representatives failed to file a
motion to lift the order of default. Nevertheless,
respondent, as executor of his fathers estate,
filed a motion for leave to file a responsive
pleading, three motions for extensions to file an
answer, and a motion for bill of particulars all of
which were granted by the anti-graft court.
Given the existence of the default order
then, what is the legal effect of the granting of
the motions to file a responsive pleading and bill
of particulars? In our view, the effect is that the
default order against the former president is
deemed lifted.
Considering that a motion for extension of
time to plead is not a litigated motion but an ex
parte one, the granting of which is a matter
addressed to the sound discretion of the court;

that in some cases we have allowed defendants

to file their answers even after the time fixed for
their presentation; that we have set aside orders
of default where defendants failure to answer
on time was excusable; that the pendency of the
motion for a bill of particulars interrupts the
period to file a responsive pleading; and
considering that no real injury would result to
the interests of petitioner with the granting of
the motion for a bill of particulars, the three
motions for extensions of time to file an answer,
and the motion with leave to file a responsive
pleading, the anti-graft court has validly clothed
respondent with the authority to represent his
deceased father. The only objection to the
action of said court would be on a technicality.
But on such flimsy foundation, it would be
erroneous to sacrifice the substantial rights of a
litigant. Rules of procedure should be liberally
construed to promote their objective in assisting
the parties obtain a just, speedy and
inexpensive determination of their case.[35]
While it is true that there was no positive

act on the part of the court to lift the default

order because there was no motion nor order to
that effect, the anti-graft courts act of granting
respondent the opportunity to file a responsive
pleading meant the lifting of the default order on
terms the court deemed proper in the interest of
justice. It was the operative act lifting the
default order and thereby reinstating the
position of the original defendant whom
respondent is representing, founded on the
courts discretionary power to set aside orders of
default.
It is noteworthy that a motion to lift a
default order requires no hearing; it need be
under oath only and accompanied by an affidavit
of merits showing a meritorious defense.[36]
And it can be filed at any time after notice
thereof and before judgment. Thus, the act of
the court in entertaining the motions to file a
responsive pleading during the pre-trial stage of
the
proceedings
effectively
meant
that
respondent has acquired a locus standi in this
case. That he filed a motion for a bill of

particulars instead of an answer does not pose

an issue because he, as party defendant
representing the estate, is allowed to do so under
the Rules of Court to be able to file an intelligent
answer. It follows that petitioners filing of a bill
of particulars in this case is merely a condition
precedent to the filing of an answer.
Indeed, failure to file a motion to lift a
default order is not procedurally fatal as a
defaulted party can even avail of other remedies
mentioned above.
As default judgments are frowned upon, we
have been advising the courts below to be
liberal in setting aside default orders to give
both parties every chance to present their case
fairly without resort to technicality.[37] Judicial
experience shows, however, that resort to
motions for bills of particulars is sometimes
intended for delay or, even if not so intended,
actually result in delay since the reglementary
period for filing a responsive pleading is
suspended and the subsequent proceedings are
likewise set back in the meantime.
As

understood under Section 1 of Rule 12,

mentioned above, a motion for a bill of
particulars must be filed within the reglementary
period for the filing of a responsive pleading to
the pleading sought to be clarified. This
contemplates pleadings which are required by
the Rules to be answered under pain of
procedural sanctions, such as default or implied
admission of the facts not responded to.[38]
But as defaulted defendants are not
actually thrown out of court because the Rules
see to it that judgments against them must be in
accordance with the law and competent
evidence, this Court prefers that the lifting of
default orders be effected before trial courts
could receive plaintiffs evidence and render
judgments. This is so since judgments by
default may result in considerable injustice to
defendants, necessitating careful and liberal
examination of the grounds in motions seeking
to set them aside. The inconvenience and
complications
associated
with
rectifying
resultant errors, if defendant justifies his

omission to seasonably answer, far outweigh the

gain in time and dispatch of immediately trying
the case.[39] The fact that former President
Marcos was in exile when he was declared in
default, and that he later died still in exile,
makes the belated filing of his answer in this
case understandably excusable.
The anti-graft court required the Marcos
siblings through its January 11, 1999 Order[40]
to substitute for their father without informing
them that the latter was already declared in
default. They were unaware, therefore, that they
had to immediately tackle the matter of default.
Respondent, who stands as the executor of their
fathers estate, could assume that everything
was in order as far as his standing in court was
concerned. That his motion for leave to file a
responsive pleading was granted by the court
gave him credible reason not to doubt the
validity of his legal participation in this case.
Coupled with his intent to file an answer, once
his motion for a bill of particulars is sufficiently
answered by petitioner, the circumstances

abovementioned warrant the affirmation of the

anti-graft courts actions now being assailed.
As to the propriety of the granting of the
motion for a bill of particulars, we find for
respondent as the allegations against former
President Marcos appear obviously couched in
general terms. They do not cite the ultimate
facts to show how the Marcoses acted in
unlawful concert with Cruz in illegally amassing
assets, property and funds in amounts
disproportionate to Cruzs lawful income, except
that the former President Marcos was the
president at the time.
The pertinent allegations in the expanded
complaint subject of the motion for a bill of
particulars read as follows:
11.
Defendant Roman A. Cruz, Jr.
served as public officer during the Marcos
administration. During his . . . incumbency as
public officer, he acquired assets, funds and
other property grossly and manifestly
disproportionate to his salaries, lawful income
and income from legitimately acquired
property.
12. . . . Cruz, Jr., in blatant abuse of
his position as Chairman and General

Manager
of
the
Government
Service
Insurance System (GSIS), as President and
Chairman of the Board of Directors of the
Philippine Airlines (PAL), and as Executive
Officer of the Commercial Bank of Manila, by
himself and/or in unlawful concert with
defendants Ferdinand E. Marcos and Imelda
R. Marcos, among others:
(a)
purchased through Arconal N.V., a
Netherland-Antilles Corporation, a lot and
building located at 212 Stockton St., San
Francisco, California, for an amount much
more than the value of the property at the
time of the sale to the gross and manifest
disadvantageous (sic) to plaintiff.
GSIS
funds
in
the
amount
of
$10,653,350.00 were used for the purchase
when under the right of first refusal by PAL
contained in the lease agreement with Kevin
Hsu and his wife, the owners of the building,
a much lower amount should have been paid.
For the purchase of the building,
defendant Cruz allowed the intervention of
Sylvia Lichauco as broker despite the fact that
the services of such broker were not
necessary and even contrary to existing
policies of PAL to deal directly with the seller.
The broker was paid the amount of
$300,000.00 resulting to the prejudice of GSIS
and PAL.
(b) Converted and appropriated to . . .
own use and benefit funds of the Commercial
Bank of Manila, of which he was Executive
Officer at the time.

He caused the disbursement from the

funds of the bank of among others, the
amount of P81,152.00 for personal services
rendered to him by one Brenda Tuazon.
(c)
Entered
into
an
agency
agreement on behalf of the Government
Service Insurance System with the Integral
Factors Corporation (IFC), to solicit insurance,
and effect reinsurance on behalf of the GSIS,
pursuant to which agreement, IFC effected a
great part of its reinsurance with INRE
Corporation, which, was a non-insurance
company registered in London[,] with
defendant . . . Cruz, Jr., as one of its directors.
IFC was allowed to service accounts
emanating from government agencies like the
Bureau of Buildings, Philippine National Oil
Corporation, National Power Corporation,
Ministry of Public Works and Highways which
under the laws are required to insure with and
deal directly with the GSIS for their insurance
needs. The intervention of IFC to service
these accounts caused the reduction of
premium paid to GSIS as a portion thereof
was paid to IFC.
(d)
Entered into an agreement with
the Asiatic Integrated Corporation (AIC)
whereby the GSIS ceded, transferred, and
conveyed property consisting of five (5)
adjoining parcels of land situated in Manila
covered by Transfer Certificates of Title (TCT)
Nos. 49853, 49854, 49855 and 49856 to AIC
in exchange for AIC property known as the
Pinugay Estate located at Tanay, Rizal,

covered by TCT No. 271378, under terms and

conditions
grossly
and
manifestly
disadvantageous to the government.
The appraised value of the GSIS parcels
of land was P14,585,600.00 as of June 25,
1971 while the value of the Pinugay Estate
was P2.00 per square meter or a total amount
ofP15,219,264.00.
But
in
the
barter
agreement, the Pinugay Estate was valued at
P5.50 per square meter or a total of
P41,852,976.00, thus GSIS had to pay AIC
P27,287,976.00, when it was GSIS which was
entitled to payment from AIC for its failure to
pay the rentals of the GSIS property then
occupied by it.
(e)
purchased
three
(4)
(sic)
additional Airbus 300 in an amount much
more than the market price at the time when
PAL was in deep financial strain, to the gross
and manifest disadvantage of Plaintiff.
On October 29, 1979, defendant Cruz,
as President and Chairman of the Board of
Directors of . . . (PAL) authorized the payment
of non-refundable deposit of U.S. $200,000.00
even before a meeting of the Board of
Directors of PAL could deliberate and approve
the purchase.[41]

In his motion for a bill of particulars,

respondent wanted clarification on the specific
nature, manner and extent of participation of his
father in the acquisition of the assets cited
above under Cruz; particularly whether former

President Marcos was a beneficial owner of

these properties; and the specific manner in
which he acquired such beneficial control.
Also, respondent wanted to know the
specific nature, manner, time and extent of
support, participation and collaboration of his
father in (1) Cruzs alleged blatant abuse as
GSIS president and general manager, PAL
president and chairman of the board, and
executive officer of the CBM; (2) the purchase of
a lot and building in California using GSIS funds
and Cruzs allowing Lichauco as broker in the
sale of the lot and building contrary to PAL
policies; (3) Cruzs appropriating to himself CBM
funds; (4) Cruzs disbursement of P81,152 CBM
funds for personal services rendered to him by
Tuazon; (5) Cruzs entering into an agency
agreement for GSIS with IFC to solicit, insure, and
effect reinsurance of GSIS, as result of which IFC
effected a great part of its reinsurance with INRE
Corporation, a London-registered non-insurance
company, of which Cruz was one of the directors;
(6) Cruzs allowing IFC to service the accounts

emanating from government agencies which

were required under the law to insure and deal
directly with the GSIS for their insurance needs;
(7) the GSIS-AIC agreement wherein GSIS ceded
and conveyed to AIC five parcels of land in Manila
in exchange for AICs Pinugay Estate in Tanay,
Rizal; (8) PALs purchase of three Airbus 300 jets
for a higher price than the market price; and (9)
if former President Marcos was connected in any
way to IFC and INRE Corporation. Respondent
likewise asked, what is the specific amount of
damages demanded?
The
1991
Virata-Mapa
Doctrine[42]
prescribes a motion for a bill of particulars, not a
motion to dismiss, as the remedy for perceived
ambiguity or vagueness of a complaint for the
recovery of ill-gotten wealth,[43] which was
similarly worded as the complaint in this case.
That doctrine provided protective precedent in
favor of respondent when he filed his motion for
a bill of particulars.
While the allegations as to the alleged
specific acts of Cruz were clear, they were vague

and unclear as to the acts of the Marcos couple

who were allegedly in unlawful concert with
the former. There was no factual allegation in
the original and expanded complaints on the
collaboration of or on the kind of support
extended by former President Marcos to Cruz in
the commission of the alleged unlawful acts
constituting the alleged plunder.
All the
allegations against the Marcoses, aside from
being maladroitly laid, were couched in general
terms.
The alleged acts, conditions and
circumstances that could show the conspiracy
among the defendants were not particularized
and sufficiently set forth by petitioner.
That the late presidents co-defendants
were able to file their respective answers to the
complaint does not necessarily mean that his
estates executor will be able to file an equally
intelligent
answer,
since
the
answering
defendants defense might be personal to them.
In dismissing this petition, Tantuico, Jr. v.
Republic[44] also provides us a cogent
jurisprudential guide. There, the allegations

against former President Marcos were also

conclusions of law unsupported by factual
premises. The particulars prayed for in the
motion for a bill of particulars were also not
evidentiary in nature. In that case, we ruled
that the anti-graft court acted with grave abuse
of discretion amounting to lack or excess of
jurisdiction in denying an alleged cronys motion
for a bill of particulars on a complaint with
similar tenor and wordings as in the case at bar.
Likewise we have ruled in Virata v.
Sandiganbayan[45] (1993) that Tantuicos
applicability to that case was ineluctable, and
the propriety of the motion for a bill of
particulars under Section 1, Rule 12 of the
Revised Rules of Court was beyond dispute.[46]
In 1996, in the similar case of Republic v.
Sandiganbayan (Second Division),[47] we also
affirmed the resolutions of the Sandiganbayan
granting the motion for a bill of particulars of
Marcos alleged crony, business tycoon Lucio
Tan.[48]
Phrases like in flagrant breach of public

trust and of their fiduciary obligations as public

officers with grave and scandalous abuse of right
and power and in brazen violation of the
Constitution and laws, unjust enrichment,
embarked
upon
a
systematic
plan
to
accumulate ill-gotten wealth, arrogated unto
himself all powers of government, are easy and
easy to read; they have potential media
quotability and they evoke passion with literary
flair, not to mention that it was populist to flaunt
those statements in the late 1980s. But they are
just that, accusations by generalization.
Motherhood statements they are, although now
they might be a politically incorrect expression
and an affront to mothers everywhere, although
they best describe the accusations against the
Marcoses in the case at bar.
In
Justice
Laurels
words,
the
administration of justice is not a matter of
guesswork.[49] The name of the game is fair
play, not foul play. We cannot allow a legal
skirmish where, from the start, one of the
protagonists enters the arena with one arm tied

to his back.[50] We must stress anew that the

administration of justice entails a painstaking,
not haphazard, preparation of pleadings.
The facile verbosity with which the legal
counsel for the government flaunted the
accusation of excesses against the Marcoses in
general terms must be soonest refurbished by a
bill of particulars, so that respondent can
properly prepare an intelligent responsive
pleading and so that trial in this case will
proceed as expeditiously as possible. To avoid a
situation where its pleadings may be found
defective, thereby amounting to a failure to
state a cause of action, petitioner for its part
must be given the opportunity to file a bill of
particulars. Thus, we are hereby allowing it to
supplement its pleadings now, considering that
amendments to pleadings are favored and
liberally allowed especially before trial.
Lastly, the allowance of the motion for a
more definite statement rests with the sound
discretion of the court. As usual in matters of a
discretionary nature, the ruling of the trial court

will not be reversed unless there has been a

palpable abuse of discretion or a clearly
erroneous order.[51] This Court has been
liberal in giving the lower courts the widest
latitude of discretion in setting aside default
orders justified under the right to due process
principle. Plain justice demands and the law
requires no less that defendants must know
what the complaint against them is all about.
[52]
What is important is that this case against
the Marcoses and their alleged crony and
dummy be decided by the anti-graft court on the
merits, not merely on some procedural faux
pas. In the interest of justice, we need to dispel
the impression in the individual respondents
minds that they are being railroaded out of their
rights and properties without due process of law.
WHEREFORE, finding no grave abuse of
discretion on the part of the Sandiganbayan in
granting respondents Motion for Bill of
Particulars, the petition isDISMISSED. The
Resolutions of the Sandiganbayan dated January

31, 2000 and March 27, 2001 in Civil Case No.

0006 are AFFIRMED. Petitioner is ordered to
prepare and file a bill of particulars containing
the ultimate facts as prayed for by respondent
within twenty (20) days from notice.
SO ORDERED.

LEONARDO A.
QUISUMBING
Associate Justice
WE CONCUR:

CONCHITA CARPIO MORALES

Associate Justice
DANTE O. TINGA
PRESBITERO J.
Associate Justice
VELASCO, JR.
Associate Justice
RUBEN T. REYES
Associate Justice

ATTESTATION
I attest that the conclusions in the above
Resolution had been reached in consultation
before the case was assigned to the writer of the
opinion of the Courts Division.

LEONARDO A.
QUISUMBING
Associate Justice
Chairperson

CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, and the Division Chairpersons
Attestation, I certify that the conclusions in the
above Resolution had been reached in
consultation before the case was assigned to the
writer of the opinion of the Courts Division.

REYNATO S. PUNO

Chief Justice

Additional member due to the inhibition of Associate Justice

Antonio T. Carpio and pursuant to Administrative Circular No. 842007.
[1]
Rollo, pp. 2-33.
[2]
Id. at 5; Records, Vol. 1, p. 42. Civil Case No. 0006, titled
Republic of the Philippines v. Roman A. Cruz, Jr., Ferdinand E.
Marcos and Imelda R. Marcos, for reconveyance, reversion,
accounting, restitution and damages. There were 39 such
complaints filed against the Marcoses by the PCGG.
[3]
Records, Vol. 4, pp. 1,754-1,760.
[4]
Id. at 1,919-1,920.
[5]
Records, Vol. 1, pp. 1-24.
[6]
Id. at 68-89.
[7]
Id. at 175-188; 196-198.
[8]
Id. at 210-232.
[9]
Id. at 255-264.
[10]
Id. at 282-293.
[11]
Id. at 306; Imelda R. Marcos, et al. v. Garchitorena, et al., G.R.
Nos. 90110-43, February 22, 1990 (Unsigned Resolution).
[12]
Id. at 364.
[13]
G.R. Nos. 90110-43, February 22, 1990 (Unsigned Resolution).
[14]
Records, Vol. 1, pp. 397-399; 415-418.
[15]
Id. at 946-960.
[16]
Id. at 987-1,014.
[17]
G.R. Nos. 109430-43, December 28, 1994, 239 SCRA 529.
[18]
Id. at 534-535.
[19]
Records, Vol. 3, pp. 1,161-1,182.
[20]
Records, Vol. 4, p. 1,589.
[21]
Id. at 1,609-1,611.
[22]
Id. at 1,614-1,617.
[23]
Id. at 1,633-1,634.
[24]
Id. at 1,665-1,672.
[25]
Id. at 1,705-1,712.
[26]
Id. at 1,760.
[27]
Id. at 1,764-1,781.
[28]
SECTION 1. When applied for; purpose. Before responding
to a pleading, a party may move for a definite statement or for a

bill of particulars of any matter which is not averred with sufficient

definiteness or particularity to enable him properly to prepare his
responsive pleading. If the pleading is a reply, the motion must be
filed within ten (10) days from service thereof. Such motion shall
point out the defects complained of, the paragraphs wherein they
are contained, and the details desired.
[29]
Rollo, p. 13.
[30]
SEC 3. Default; declaration of. If the defending party fails to
answer within the time allowed therefor, the court shall, upon
motion of the claiming party with notice to the defending party, and
proof of such failure, declare the defending party in default.
Thereupon, the court shall proceed to render judgment granting the
claimant such relief as his pleading may warrant, unless the court in
its discretion requires the claimant to submit evidence. Such
reception of evidence may be delegated to the clerk of court.
(a)
Effect of order of default. A party in default shall be
entitled to notice of subsequent proceedings but not to take
part in the trial.
(b)
Relief from order of default. A party declared in
default may at any time after notice 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 negligence 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. . . .
xxxx
[31]
Records, Vol. 1, pp. 218-222.
[32]
Rollo, pp. 206-207.
[33]
Supra note 31.
[34]
Lina v. Court of Appeals, No. L-63397, April 9, 1985, 135 SCRA
637, 641-642; See The Mechanics of Lifting an Order of Default,
December 14, 1981, 110 SCRA 223, 227-232.
[35]
Amante v. Suga, No. L-40491, May 28, 1975, 64 SCRA 192,
195-197.
[36]
RULES OF COURT, Rule 9, Sec. 3, par. (b).
[37]
Santos v. Samson, No. L-46371, December 14, 1981, 110 SCRA
215, 220.
[38]
1 F. REGALADO, REMEDIAL LAW COMPENDIUM, 198-199 (7 th
rev. ed., 1999).
[39]
Lim Tanhu v. Ramolete, No. L-40098, August 29, 1975, 66
SCRA 425, 453-454.

[40]
[41]
[42]

Rollo, p. 89.
Id. at 65-69.
Virata v. Sandiganbayan, G.R. Nos. 86926 & 86949, October
15, 1991, 202 SCRA 680; Justice Hugo Gutierrez, Jr. dissented,
saying the motion to dismiss should have been granted because
the complaint consisted of mere inferences and general
conclusions, with no statement of ultimate facts to support the
sweeping and polemical charges, which cannot substitute for a
cause of action.
[43]
Id. at 694-695.
[44]
G.R. No. 89114, December 2, 1991, 204 SCRA 428.
[45]
G.R. No. 106527, April 6, 1993, 221 SCRA 52.
[46]
Id. at 62.
[47]
G.R. No. 115748, August 7, 1996, 260 SCRA 411.
[48]
Id. at 419.
[49]
Go Occo & Co. v. De la Costa and Reyes, 63 Phil. 445, 449
(1936).
[50]
Republic v. Sandiganbayan, supra note 17, at 538.
[51]
Santos v. Liwag, No. L-24238, November 28, 1980, 101 SCRA
327, 329.
[52]
Virata v. Sandiganbayan, G.R. No. 114331, May 27, 1997, 272
SCRA 661, 688.

THIRD DIVISION
SONIA

MACEDA

G.R. No. 164947

ALIAS
SONIALITA
MACEDA
AND
GEMMA MACEDAMACATANGAY,
Petitioners,
- versus ENCARNACION DE
GUZMAN VDA. DE
MACATANGAY,

Present:
QUISUMBING
J.,
Chairperson,
CARPIO,
CARPIO MORALES,
and
TINGA, JJ.
Promulgated:
January 31, 2006

Respondent.
x ----------------------------------------------------------x

DECISION
CARPIO MORALES, J.:
Petitioner Sonia Maceda (Sonia) and
Bonifacio Macatangay (Macatangay) contracted
marriage on July 26, 1964.[1] The union bore

one
child,
petitionerGemma
(Gemma), on March 27, 1965.[2]

Macatangay

The couple separated not long after the

marriage.
In
1967,
the
couple
executed
a
Kasunduan[3] whereby they agreed to live
separately.

Macatangay soon lived with Carmen Jaraza

(Carmen).
After the death on December 7, 1998 of
Macatangay who was a member of the Social
Security System (SSS) or on December 14,
1998, his common-law wife Carmen filed a death
benefit application before the SSS Lucena
Branch. The SSS denied[4] her application, it
ruling that it is Macatangays wife who is his
primary beneficiary.

On January 9, 1999, petitioner Sonia filed

before the SSS a death benefit application.
Macatangays children with his commonlaw wife Carmen, namely Jay, Elena, and Joel,
aged 27, 31, and 29 years old, respectively, also
filed in 1999[5]separate applications for death
benefits following the SSS denial of their
mothers application.
On September 10, 1999, the SSS denied
Macatangays illegitimate childrens claim on the
ground that under Republic Act 8282, THE
SOCIAL SECURITY ACT OF 1997, it is the
dependent spouse, until he or she remarries,
who is the primary beneficiary of the deceased
member.[6]
Petitioner Sonias application for death
benefit was approved on December 20, 1999.
She received a lump sum amount of P33,000
representing pensions [7]from the SSS.

On February 22, 2000, Macatangays

mother, herein respondent Encarnacion de
Guzman, filed a petition before the Social
Security Commission (SSC) inMakati City[8]
against herein petitioners Sonia and Gemma, for
the grant to her of social security benefits, she
claiming that her son designated her and his
three illegitimate children as his beneficiaries
under the SSS;[9] she was made to sign a
document regarding the distribution of benefits
of Macatangay by SSS LucenaBranch Chief Atty.
Corazon M. Villamayor who, however, did not
furnish her a copy thereof nor inform her of its
nature;[10] and after she signed the document,
the three illegitimate children received notices
denying their application for death benefits.[11]
The SSS office in Quezon City filed a
petition-in-intervention in the petition filed by
respondent before the SSC in Makati City.[12]
In

her

position

paper,

respondent

contended as follows:
[I]n the present case, the agreement of
the spouses to live separately four (4) months
after their marriage and which agreement
was
finally
made
in
writing
before
theBarangay will unquestionably show that
Sonia or Sonialita Maceda was not
dependent upon the late member for
support and therefore cannot be considered
as his primary beneficiary under the aforesaid
law. Said agreement, though proscribed by
law by reasons of public policy, was a mutual
agreement short of a court decree for legal
separation and will not in any way change the
fact that the two lived separately. This under
any
circumstances
will
dispute
the
presumption of the dependency for support
arising from the legitimacy of the marital
union as reasoned out by the SSS in their
Petition for Intervention.[13] (Emphasis and
underscoring supplied)

Petitioners, on the other hand, hinged their

claim on Section 8(e)
and (k) of The Social
Security Act of 1997. Thus they argued:
Section 8 (e) and (k) of Republic Act
8282 is crystal clear on who should be
Bonifacio
De
Guzman
Macatangays

beneficiary, thus:
(e) Dependents The
dependents shall be the following:
(1)
The
legal
spouse
entitled by law to receive support
from the member;
(2)
The
legitimate,
legitimated or legally adopted,
and illegitimate child who is
unmarried,
not
gainfully
employed and has not reached
twenty-one years (21) of age, or if
over twenty-one (21) years of
age, he is congenitally or while
still
a
minor
has
been
permanently incapacitated and
incapable
of
self-support,
physically or mentally, and
(3) The parent who is
receiving regular support from the
member.
(k) Beneficiaries The
dependent spouse until he or she
remarries,
the
dependent
legitimate, legitimated or legally
adopted, and illegitimate children,
who
shall
be
the
primary
beneficiaries of the member;
Provided, That the dependent

illegitimate children shall be

entitled to fifty percent (50%) of
the share of the legitimate,
legitimated or legally adopted
children: Provided, further, That
in the absence of the dependent
legitimate, legitimated or legally
adopted children of the member,
his/her dependent illegitimate
children shall be entitled to one
hundred percent (100%) of the
benefits. In their absence, the
dependent parents who shall be
the second beneficiaries of the
member. In the absence of all the
foregoing, any other person
designated by the member as
his/her secondary beneficiary.
(Underscoring and emphasis in
the original)[14]

As for the SSS, it argued that:

[T]o be considered dependent for support, a
surviving spouse of a member must only
show that she is entitle[d] for support from
the member by virtue of a valid marriage.
The surviving spouse is not required to
show that he/she actually received
support from the member during his/her
lifetime. Her dependency for support is

actually presumed from the legitimacy of the

marital
union.[15]
(Emphasis
and
underscoring supplied)

The SSC, taking the Kasunduan[16] as

proof that Sonia was no longer dependent for
support on Bonifacio,[17] and declaring that the
SSS Lucena Branch acted in good faith in
granting the benefits to Sonia, granted
respondents petition by Resolution of November
14, 2001.[18] It accordingly disposed as follows:
IN VIEW OF ALL THE FOREGOING, the
Commission hereby orders respondent Sonia
(Sonialita) Macatangay to refund the monthly
pensions paid to her by mistakeand for the
SSS to collect the same immediately upon
receipt hereof.
Meanwhile, the System is ordered to
grant the SS lump sum death benefits of
member Bonifacio Macatangay to designated
beneficiaries Encarnacion Macatangay, Elena,
Joel, and Jay Macatangay, subject to existing
rules and regulations.
SO
supplied)

ORDERED.[19]

(Underscoring

Petitioners motion for reconsideration[20]

of the SSC Resolution was denied by Order of
August 14, 2002.[21]
Petitioners thereupon filed a petition for
review,[22] docketed as
CA G.R. No.
73038, before the Court of Appeals which
dismissed it outright, by the present challenged
Resolution of October 21, 2002,[23] on the
following procedural grounds:
A perusal of the petition however shows
that there was no written explanation as to
why respondents were not personally served
copies
of
the
petition
as
required
underSection 11, Rule 13 of the 1997 Rules of
Civil Procedure.
Also, the petition is not accompanied by
copies of the pleadings and documents
relevant and pertinent thereto (i.e., position
papers filed by the parties before the SSC,
motion to dismiss filed by petitioner before
the SSC) as required under Section 6, Rule 43
of the 1997 Rules of Civil Procedure.
Finally, petitioners counsel failed to
comply with the requirements under Bar
Matter No. 287 which requires that all

lawyers shall indicate in all pleadings,

motions and papers signed and filed by them
the number and date of their official receipt
indicating
payment
of
their
annual
membership dues to the Integrated Bar of the
Philippines for the current year x x x. In the
instant petition, Atty. Calayan failed to
indicate the number and date of the official
receipt evidencing payment of IBP dues.[24]
(Italics in the original; underscoring supplied)

Via an Omnibus Motion,[25] petitioners

prayed the Court of Appeals to
(a)
RECONSIDER its Resolution dated October 21,
2002 dismissing the
Petition for Review; and
(b) ADMIT the thereto attached certified true
copies of the parties Position Papers and the
petitioners Motion to Dismiss filed with the SSC,
[26] the Certificate of Life Membership of their
counsel Atty. Ronaldo Antonio Calayan,[27] and
the Official Receipt showing said counsels
payment of lifetime membership fee to the
Integrated Bar of the Philippines.[28]
The

Court

of

Appeals,

finding

no

substantial compliance by petitioners with the

requirement in Section 11, Rule 13 of the 1997
Rules of Civil Procedure reading:
Section 11. Priorities in Modes of
Service and Filing Whenever practicable,
the service and filing of pleadings and other
papers shall be done personally. Except with
respect to papers emanating from the court,
a resort to other modes must be
accompanied by a written explanation why
the service or filing was not done personally.
A violation of this rule may cause to consider
the paper as not filed.,

denied the Omnibus Motion by Resolution of

August 4, 2004.[29]
Hence, the present Petition for Review[30]
faulting the appellate court as follows:
I. THE HONORABLE COURT OF APPEALS
ERRED
IN
STRICTLY
ADHERING
TO
TECHNICALITIES,
RATHER
THAN
IN
SUBSTANTIAL
COMPLIANCE,
IN
THE
APPLICATION OF THE PROVISIONS OF THE
1997 RULES ON CIVIL PROCEDURE.
II. THE CIRCUMSTANCES PREVAILING IN

THIS PETITION FIND SUPPORT IN DECISIONS

OF THIS HONORABLE COURT IN FAVOR OF
THE REVERSAL OF THE COURT OF APPEALS
DECISION
UNDER
REVIEW.[31]
(Underscoring supplied)

Petitioners posit that they complied

substantially with Section 11, Rule 13 of the
Rules of Court, as follows:
Sonias affidavit of service clearly
shows the impracticability of personal service
of copies of the petition to the adverse
parties. Manifest in the same affidavit is
theintervenor
Social
Security
Systems
address in Quezon City; that of the private
respondents lawyer in Lopez, Quezon, and
that of Social Security Commission in Makati
City. Sonias counsels address is Lucena City.
The distance between these addresses, it is
most respectfully submitted as a matter of
judicial notice, may be construed as more
than competent indicia as to why Sonia
resorted
to
service
by
mail.[32]
(Underscoring supplied)

And they cite jurisprudence calling for a

liberal interpretation of the Rules in the interest
of substantial justice,[33] specifically Barnes v.

Reyes[34] which classifies Section 11, Rule 13 of

the Rules as a directory, rather than a
mandatory, rule.
The petition is meritorious.
In Solar Team Entertainment, Inc. v.
Ricafort,[35] this Court, passing upon Section 11
of Rule 13 of the Rules of Court, held that a
court has the discretion to consider a pleading
or paper as not filed if said rule is not complied
with.
Personal service and filing are
preferred for obvious reasons. Plainly, such
should expedite action or resolution on a
pleading, motion or other paper; and
conversely, minimize, if not eliminate, delays
likely to be incurred if service or filing is done
by mail, considering the inefficiency of the
postal service. Likewise, personal service will
do away with the practice of some lawyers
who, wanting to appear clever, resort to the
following less than ethical practices: (1)
serving or filing pleadings by mail to catch
opposing counsel off-guard, thus leaving the
latter with little or no time to prepare, for
instance,
responsive
pleadings
or
an

opposition; or (2) upon receiving notice from

the post office that the registered containing
the pleading of or other paper from the
adverse party may be claimed, unduly
procrastinating before claiming the parcel, or,
worse, not claiming it at all, thereby causing
undue delay in the disposition of such
pleading or other papers.
If only to underscore the mandatory
nature of this innovation to our set of
adjective rules requiring personal service
whenever practicable, Section 11 of Rule 13
then gives the court the discretion to
consider a pleading or paper as not filed
if the other modes of service or filing
were not resorted to and no written
explanation was made as to why
personal service was not done in the
first place. The exercise of discretion
must,
necessarily
consider
the
practicability of personal service, for
Section 11 itself begins with the clause
whenever practicable.
We thus take this opportunity to clarify
that under Section 11, Rule 13 of the 1997
Rules of Civil Procedure, personal service and
filing is the general rule, and resort to other
modes of service and filing, the exception.
Henceforth, whenever personal service or
filing is practicable, in the light of the
circumstances of time, place and person,
personal service or filing is mandatory. Only

when personal service or filing is not

practicable may resort to other modes be
had, which must then be accompanied by a
written explanation as to why personal
service or filing was not practicable to begin
with. In adjudging the plausibility of an
explanation, a court shall likewise consider
the importance of the subject matter of the
case or the issues involved therein, and the
prima facie merit of the pleading sought to be
expunged for violation of Section 11.[36]
(Emphasis and underscoring supplied)

In Musa v. Amor, this Court, on noting the

impracticality of personal service, exercised its
discretion and liberally applied Section 11 of
Rule 13:[37]
As [Section 11, Rule 13 of the Rules of Court]
requires, service and filing of pleadings must
be done personally whenever practicable.
The court notes that in the present case,
personal
service
would
not
be
practicable. Considering the distance
between the Court of Appeals and
Donsol, Sorsogon where the petition
was
posted,
clearly,
service
by
registered mail [sic] would have entailed
considerable time, effort
and expense. A written explanation why

service was not done personally might

have been superfluous. In any case, as
the rule is so worded with the use of may,
signifying permissiveness, a violation thereof
gives the court discretion whether or not to
consider the paper as not filed. While it is
true that procedural rules are necessary to
secure an orderly and speedy administration
of justice, rigid application of Section 11,
Rule 13 may be relaxed in this case in
the interest of substantial justice.[38]
(Emphasis and underscoring supplied)

In the case at bar, the address of

respondents counsel is Lopez, Quezon, while
petitioner Sonias counsels is Lucena City.[39]
Lopez, Quezon is 83 kilometers away from
Lucena City.[40] Such distance makes personal
service impracticable. As in Musa v. Amor,[41] a
written explanation why service was not done
personally might have been superfluous.
As this Court held in Tan v. Court of
Appeals,[42] liberal construction of a rule of
procedure has been allowed where, among other
cases, the injustice to the adverse party is not
commensurate with the degree of his

thoughtlessness in not complying with the

procedure prescribed.
Without preempting the findings of the
Court of Appeals on the merits of petitioners
petition in CA G.R. No. 73038, if petitioners
allegations of fact and of law therein are true
and the outright dismissal of their petition is
upheld without giving them the opportunity to
prove their allegations, petitioner Sonia would
be deprived of her rightful death benefits just
because
of the Kasunduan she forged with her husband
Macatangay which contract is, in the first place,
unlawful.[43] The resulting injustice would not
be commensurate to petitioners counsels
thoughtlessness in not explaining why
respondents were not personally served copies
of the petition.
WHEREFORE, the petition is GRANTED.
The Resolutions of
the Court of Appeals dated

October 21, 2002 and August 4, 2004 in

CA G.R. No. 73038 are REVERSED and
SET ASIDE.
Let the records of the case be REMANDED
to the Court of Appeals which is DIRECTED to
take appropriate action on petitioners petition
for review in light of the foregoing discussions.
SO ORDERED.

CONCHITA
CARPIO
MORALES
Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chaiperson

ANTONIO T. CARPIO
Associate Justice

DANTE O. TINGA
Associate Justice

ATTESTATION

I attest that the conclusions in the above

Decision were reached in consultation before the
case was assigned to the writer of the opinion of

the Courts Division.

LEONARDO A.
QUISUMBING
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Article VIII, Section 13 of the

Constitution, and the Division Chairmans
Attestation, it is hereby certified that the
conclusions in the above Decision were reached
in consultation before the case was assigned to
the writer of the opinion of the Court.

ARTEMIO

V.

PANGANIBAN
Chief
Justice

[1]
[2]
[3]
[4]

Rollo, p. 4.
Id. at 5.
Id. at 55.
Supra note 2. The records of the case do not contain a copy of
the advice of denial.
[5]
SSC records, pp. 18-20.
[6]
Id. at 21-23.
[7]
Id. at 30, 129, 147. Vide note 2.
[8]
Id. at 1-31.
[9]
Id. at 2. See also pp. 13 and 14 (copies of SSS Forms E-4 and
E-1 containing the designation of beneficiaries).
[10]
Id. at 4.
[11]
Ibid.
[12]
Id. at 37-40.
[13]
Id. at 97 (citations omitted).
[14]
Id. at 135-136.
[15]
Id. at 39 (citation omitted).
[16]
Id. at 145. See also supra note 3.
[17]
Id. at 145-146.
[18]
Id. at 143-148.
[19]
Id. at 147.
[20]
Id. at 151-155.
[21]
Id. at 169-172.
[22]
CA rollo, pp. 2-16.

[23]
Penned by Justice Elvi John S. Asuncion, with the concurrence
of Justices Portia Alio-Hormachuelos and Juan Q. Enriquez, Jr.; id.
at 75-76.
[24]
Ibid.
[25]
CA rollo at 79-84 [sic].
[26]
Id. at 85-119 [sic].
[27]
Id. at 110 [sic].
[28]
Id. at 111 [sic].
[29]
Id. at 115-117 [sic].
[30]
Rollo, pp. 3-16.
[31]
Id. at 8 and 10.
[32]
Id. at 8.
[33]
Id. at 10-12, citing Fulgencio, et. al. v. NLRC, et. al., G.R. No.
141600, September 12, 2003, 411 SCRA 69 and Tan v. Court of
Appeals, et. al., 356 Phil. 1058 (1998).
[34]
G.R. No. 144533, September 23, 2003, 411 SCRA 538.
[35]
355 Phil. 404 (1998).
[36]
Id. at 413-414.
[37]
430 Phil. 128 (2002).
[38]
Id. at 138.
[39]
Supra note 32.
[40]
The Municipality of Lopez, Quezon: In a Nutshell (from The
Official Website of MUNICIPALITY OF LOPEZ), 13 October 2005,
<http://www.lopezquezon.gov.ph/index.php?id1=11> (visited 20
January 2006).
[41]
Supra note 37 and note 38.
[42]
Supra note 33.
[43]
Vide Albano v. Gapusan (162 Phil. 884 [1976]). In this case,
Judge Patrocinio Gapusan was censured for notarizing a document
for personal separation of the spouses Valentina Andrews and
Guillermo Maligta and for extrajudicial liquidation of their conjugal
partnership. We held:
There is no question that the covenants
contained in the said separation agreement
are contrary to law, morals, and good
customs. Those stipulations undermine the
institutions of marriage and the family.
Marriage is not a mere contract but an
inviolable social institution. The family is a
basic social institution which public policy
cherishes and protects. Marriage and the

family are the bases of human society

throughout the civilized world.
To preserve the institutions of marriage
and the family, the law considers as void
any contract for personal separation
between husband and wife and every
extrajudicial agreement, during the marriage,
for
the
dissolution
of
the
conjugal
partnership. (Id. at 888, citations omitted;
underscoring supplied)
Vide also Article 68 of the Family Code: The husband and wife
are obliged to live together, observe mutual love, respect and
fidelity, and render mutual help and support. (Emphasis added)

THIRD DIVISION
ANDY
QUELNAN,

G.R.
No.
138500
P

e
t
i
t
i
o
n
e
r
,

versu
s-

Present:
PANGANIBAN
, J., Chairman
SANDOVALGUTIERREZ,
CORONA,
CARPIO
MORALES,
and
GARCIA,
JJ.
Promulgated:
September
16, 2005

VHF
PHILIPPINE
S,
R
e
s

p
o
n
d
e
n
t
.
x---------------------------------------------------------------------------------x

DECISION
GARCIA, J.:
Under consideration is this petition for
review on certiorari to nullify and set aside the
decision[1] dated September 17, 1997 of the
Court of Appeals (CA) in CA-G.R. No. SP-41942,
and its resolution[2] dated April 27, 1999,
denying petitioners motion for reconsideration.
The factual backdrop:
In an ejectment suit (Civil Case No. 139649-

CV) filed by respondent VHF Philippines, Inc.

against petitioner Andy Quelnan, involving a
condominium unit at the Legaspi Towers 300 at
Roxas Boulevard, Manila which respondent
claimed to have been leased by petitioner, the
Metropolitan Trial Court (MeTC) of Manila, on its
finding that summons together with a copy of
the complaint was served [on petitioner] thru his
wife on August 25, 1992 by substituted service
and that petitioner failed to file his answer
within the reglementary period, came out with
a decision dated November 23, 1992[3]
rendering judgment for respondent, as follows:
WHEREFORE,
premises
considered,
judgment is hereby rendered in favor of
[respondent] and against herein [petitioner]
ordering the latter to vacate the premises
located at Unit 20-G Legaspi Towers 300, Vito
Cruz, corner Roxas Blvd., Manila and restore
possession of the same to [respondent];
ordering [petitioner] to pay [respondent] the
amount of P1,077,497.77 as of June 1992 and
the further sum of P25,000.00 and P1,500.00
as monthly rental for the condominium unit
and parking lot respectively with legal
interest thereon and to pay the sum of

P15,000.00 as and for attorneys fees with

costs against defendant.
SO ORDERED. (Words in bracket ours).

Copy of the aforementioned decision was

served on petitioner by registered mail but the
same was returned unclaimed on account of
petitioners failure to claim the same despite the
postmasters three (3) successive notices on
November 25, 1992, December 7, 1992 and
December 11, 1992.
No appeal having been taken by the
petitioner, the MeTC decision became final and
executory.
On May 18, 1993, a writ of execution, a
notice of levy and a notice to vacate were
served on petitioners wife who acknowledged
receipt thereof.
On May 24, 1993, petitioner filed with the
Regional Trial Court (RTC) at Manila a Petition for
Relief from Judgment With Prayer for Preliminary

Injunction and/or temporary restraining order,

[4] thereunder alleging, inter alia, that he was
never served with summons
and
was
completely unaware of the proceedings in the
ejectment suit, adding that he learned of the
judgment rendered thereon only on May 18,
1993 when a notice of levy on execution came
to his knowledge. He thus prayed the RTC to
annul and set aside the MeTC decision and the
writs issued in connection therewith.
In a decision dated June 3, 1996,[5] the
RTC granted petitioners petition for relief and
set aside the MeTC decision. The RTC explained
that petitioner had been unduly deprived of a
hearing and had been prevented from taking an
appeal for the reason that petitioners wife, in a
fit of anger, tore the summons and complaint in
the ejectment suit in the heat of a marital
squabble. To the RTC, this constituted excusable
negligence as would justify the filing of the
petition for relief from judgment.

Respondent sought reconsideration of

the RTC decision but its motion was denied
by said court in its order of July 5, 1996.[6]
Therefrom, respondent directly went to this
Court on a petition for review, which petition
was remanded by this Court to the Court of
Appeals (CA), whereat the same was docketed
as CA-G.R. SP No. 41942.
As stated at the threshold hereof, the
appellate
court,
in
a
decision
dated
September 17, 1997,[7] upon a finding that
petitioners petition for relief was filed with the
RTC beyond the 60-day mandatory period
therefor under Section 3, Rule 38 of the Rules of
Court, reversed and set aside the RTC decision
and reinstated that of the MeTC, thus:
WHEREFORE, the petition is GRANTED.
The decision dated June 3, 1996 of the
Regional Trial Court of Manila, Branch 16 is
SET ASIDE. The decision dated November 23,
1992 of the Metropolitan Trial Court of Manila,
Branch 30 is REINSTATED. No costs.
SO ORDERED.

In
time,
petitioner
moved for a
reconsideration but his motion was denied by
the appellate court in its resolution of April 27,
1999.[8]
With this turn of events, petitioner is now
the one with us via the present recourse urging
us to nullify and set aside the assailed decision
and resolution of the Court of Appeals on the
following grounds:
A.

THE RESPONDENT IN ITS PETITION

FOR
CERTIORARI
BEFORE
THE
COURT OF APPEALS DID NOT
QUESTION THE ORDERS OF THE
REGIONAL TRIAL COURT OF MANILA
DATED OCTOBER 26, 1995 AND
JANUARY 26, 1996.
B. THE METROPOLITAN TRIAL COURT
OF
MANILA
NEVER
ACQUIRED
JURISDICTION
OVER
THE
PETITIONER, HENCE ITS DECISION
CANNOT
BECOME
FINAL
AND
EXECUTORY.
C.

THE FINDINGS OF FACT OF THE

METROPOLITAN TRIAL COURT ARE

NOT SUPPORTED BY THE EVIDENCE

ON RECORD AND CANNOT BE
CONSIDERED
AS
FINAL
AND
CONCLUSIVE.[9]

As we see it, the principal questions to be

resolved are: (1) if a party fails to claim his copy
of the adverse decision which was sent through
registered mail, when is he deemed to have
knowledge of said decision? (2) will the
presumption of completeness of service of a
registered mail matter under Rule 13, Section 10
of the 1997 Rules of Civil Procedure[10] apply in
relation to the 60-day period for filing a petition
for relief from judgment under Rule 38, Section 3
of the Rules?
It is petitioners posture that the 60-day
period for filing a petition for relief from
judgment must be reckoned from the time a
party acquired knowledge of the judgment.
Hence, prescinding from his premise that he
became aware of the MeTC decision only on
May 18, 1993 when a notice to pay and vacate

was served on him by the sheriff, petitioner

submits that his petition for relief from judgment
was timely filed on May 24, 1993.
We are not persuaded.
Relief from judgment under Rule 38 is a
legal remedy whereby a party seeks to set aside
a judgment rendered against him by a court
whenever he was unjustly deprived of a hearing
or was prevented from taking an appeal, in
either case, because of fraud, accident, mistake
or excusable neglect.[11]
Section 3 of Rule 38 reads:
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,
final
order,
or
other
proceeding to be set aside, and not
more than six (6) months after such
judgment or final 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 petitioners good and
substantial cause of action or defense, as the
case may be. (Emphasis supplied)

Clear it is from the above that a petition for

relief from judgment must be filed within: (a) 60
days from knowledge of judgment, order or
other proceedings to be set aside; and (b) six (6)
months from entry of such judgment, order or
other proceeding. These two periods must
concur. Both periods are also not extendible and
never interrupted.[12] Strict compliance with
these periods stems from the equitable
character and nature of the petition for relief.
Indeed, relief is allowed only in exceptional
cases as when there is no other available or
adequate remedy. As it were, a petition for relief
is actually the last chance given by law to
litigants to question a final judgment or order.
And failure to avail of such last chance within
the grace period fixed by the Rules is fatal.[13]

We do not take issue with petitioner that

the 60-day period under Section 3, Rule 38,
supra should be reckoned from the time the
aggrieved party has knowledge of the
judgment. The Rule expressly says so. We
cannot, however, go along with his contention
that it was only on May 18, 1993 when he
became aware of the judgment subject of his
petition for relief.
The records clearly reveal that a copy of
the MeTC decision was sent to petitioner through
registered mail at his given address on
November 25, 1992. It should be noted that
petitioner was not represented by counsel
during the proceedings before the MeTC. The
first notice to him by the postmaster to check
his mail was on November 25, 1992. Thereafter,
subsequent notices were sent by the postmaster
on December 7, 1992 and December 11, 1992.
For sure, a certification that the registered mail
was unclaimed by the petitioner and thus
returned to the sender after three successive

notices was issued by the postmaster. Hence,

service of said MeTC decision became effective
five (5) days after November 25, 1992, or on
November 30, 1992, conformably with Rule
13, Section 10 of the 1997 Rules of Civil
Procedure, which reads:
SEC. 10. Completeness of Service.
Personal service is complete upon actual
delivery. Service by ordinary mail is complete
upon the expiration of ten (10) days after
mailing, unless the court otherwise provides.
Service by registered mail is complete
upon actual receipt by the addressee, or
after five (5) days from the date he
received
the
first
notice
of
the
postmaster, whichever date is earlier.
(Emphasis supplied)

There is no doubt that under the Rules,

service by registered mail is complete upon
actual receipt by the addressee. However, if the
addressee fails to claim his mail from the post
office within five (5) days from the date of the
first notice, service becomes effective upon the
expiration of five (5) days therefrom.[14] In

such a case, there arises a presumption that

the service was complete at the end of the said
five-day period. This means that the period to
appeal or to file the necessary pleading begins
to run after five days from the first notice given
by the postmaster. This is because a party is
deemed to have received and to have been
notified of the judgment at that point.
With the reality that petitioner was first
notified by the postmaster on November 25,
1992, it follows that service of a copy of the
MeTC decision was deemed complete and
effective five (5) days therefrom or on
November 30, 1992. Necessarily, the 60-day
period for filing a petition for relief must be
reckoned from such date (November 30, 1992)
as this was the day when actual receipt by
petitioner is presumed. In short, petitioner was
deemed to have knowledge of the MeTC
decision on November 30, 1992. The 60-day
period for filing a petition for relief thus expired
on January 29, 1993. Unfortunately, it was only

on May 24, 1993, or 175 days after petitioner

was deemed to have learned of the judgment
that he filed his petition for relief with the RTC.
Indubitably, the petition was filed way beyond
the 60-day period provided by law.
Moreover, the records are bereft of any
showing why petitioner failed to claim his copy
of the MeTC decision. For sure, petitioner has not
offered any explanation as to why he was not
able to obtain a copy of said decision despite
the three notices sent to him by the postmaster.
The failure to claim a registered mail matter of
which notice had been duly given by the
postmaster is not an excusable neglect that
would warrant the reopening of a decided case.
[15]
The RTC, in giving due to petitioners
petition for relief, ruled that the presumption of
completeness of service does not find
application in this case for purposes of reckoning
the 60-day period because the said 60-day
period starts only after the aggrieved party

learns of the judgment. It opined that herein

petitioner never acquired knowledge of the
MeTC judgment due to the excusable neglect of
his wife who destroyed and threw away the
summons and complaint in the ejectment suit.
We disagree. As correctly pointed out by
the appellate court, to which we are in full
accord:
xxx. The view espoused by the RTC is
not only subject to abuse by any party by
deliberately delaying the reckoning of the 60day period but is also contrary to
jurisprudence. xxx.
xxx

xxx

xxx

Nonetheless,
the
RTC
granted
Quelnans relief from judgment without
sufficient basis. What it considered as
perhaps excusable negligence is the act of
Quelnans
wife
in
tearing
the
summons/complaint because of marital
disharmony. This is extending a plethora of
leniency of the rules to the point of defeating
justice to the other party. xxx.

To stress, Rule 13 is intended to embrace

and govern the filing of all pleadings, judgments,

orders, notices and other papers, as well as the
service thereof.[16] Whenever necessary and
expedient, the presumption of completeness of
service ought to be applied, as in this case.
While it is true that the rule on completeness of
service by registered mail only provides for a
disputable presumption, the burden is on
petitioner to show that the postmasters notice
never reached him and that he did not acquire
knowledge of the judgment. Sadly, petitioner
failed to discharge his burden. In fact,
petitioners denial of receipt of the notice is
belied by the postmasters certification that the
mail was not claimed by petitioner despite the
three notices to him. In the situation obtaining
in this case, the postmasters certification is the
best evidence to prove that the first notice was
sent and delivered to the addressee.[17]
Similarly, the Court cannot accept
petitioners argument that the MeTC decision
could not become final and executory because

that court never acquired jurisdiction over his

person by reason of his wifes act of tearing the
summons and complaint for ejectment. The
records show that the service of summons upon
petitioners wife was effected in accordance with
Section 7 of Rule 14 of the 1997 Rules of Civil
Procedure,[18] the law that provides for
substituted service of summons.
Given the above, it is safe to conclude that
the MeTC decision became final on December
15, 1992, or fifteen (15) days from November
30, 1992 when the postmasters first notice of
November 25, 1992 was deemed served.
Obviously, petitioner cannot question by his
belated petition for relief the effects of the final
and executory judgment in the ejectment suit.
He cannot, by that petition, render the final
judgment abortive and impossible of execution.
The Court has invariably held 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, judgments of courts must become final at

some definite date fixed by law.[19] The Court
views with disfavor the unjustified delay in the
enforcement of the final orders and decision in
this case. Once a judgment becomes final and
executory, the prevailing party should not be
denied the fruits of his victory by some
subterfuge devised by the losing party.[20]
Verily, relief will not be granted to a party
who seeks to be relieved from the effects of a
judgment when the loss of the remedy at law
was due to his own negligence or a mistaken
mode of procedure; otherwise, petitions for relief
will be tantamount to reviving the right of
appeal which has already been lost.[21] It is a
well-known maxim that equity aids the vigilant,
not those who slumber on their rights.[22]
WHEREFORE, the present petition is
DENIED and the challenged decision and
resolution of the Court of Appeals AFFIRMED.

Costs against petitioner.

SO ORDERED.

CANCIO C. GARCIA
Associate Justice
WE CONCUR:

ARTEMIO V. PANGANIBAN
Associate Justice
Chairman

ANGELINA
SANDOVALGUTIERREZ
Associate Justice

RENATO C.
CORONA
Associate Justice

CONCHITA CARPIO MORALES

Associate Justice

ATTESTATION
I attest that the conclusions in the above
decision were reached in consultation before the
case was assigned to the writer of the opinion of
the Courts Division.
ARTEMIO V. PANGANIBAN
Associate Justice
Chairman, Third Division

CERTIFICATION
Pursuant to Article VIII, Section 13 of the
Constitution, and the Division Chairman's
Attestation, it is hereby certified that the
conclusions in the above decision were reached
in consultation before the case was assigned to
the writer of the opinion of the Court.

HILARIO G. DAVIDE, JR.

Chief Justice

[1]
[2]
[3]
[4]
[5]
[6]

Penned by Associate Justice Corona Ibay-Somera (now ret.),

with Associate Justices Antonio M. Martinez (now ret.) and
Romeo A. Brawner, concurring.
Rollo, p. 11.
Rollo,
Rollo,
Rollo,
Rollo,

pp.
pp.
pp.
pp.

132-133.
65-76.
124-129.
97-98.

[7]
Rollo, pp. 32-41.
[8]
Rollo, p. 211.
[9]
Rollo, p. 21.
[10]
Formerly Section 8, Rule 13 of the Rules of Court.
[11]
Sections 1 and 2, Rule 38 of the 1997 Rules of Civil
Procedure.
[12]
First Integrated Bonding and Insurance Co., Inc. vs.
Hernando, 199 SCRA 796 [1991].
[13]
Turqueza vs. Hernando, 97 SCRA 488 [1980].
[14]
[15]
[16]
[17]

Philippine National Bank vs. Court of First Instance of Rizal,

Pasig, Br. XXI, 209 SCRA 294 [1992].
Ferraren vs. Santos, 113 SCRA 707 [1982].
Section 1.
Barrameda vs. Castillo, 78 SCRA 1 [1977].

[18]

[19]
[20]
[21]
[1987].
[22]
[1987].

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 defendants residence
with some person of suitable age and discretion then residing
therein, or (b) by leaving the copies at defendants office or
regular place of business with some competent person in
charge thereof.
Turqueza vs. Hernando, supra.
Nasser vs. Court of Appeals, 245 SCRA 20 [1995].
Ibabao vs. Intermediate Appellate Court, 150 SCRA 76
Philippine Rabbit Bus Lines, Inc. vs. Arciaga, 148 SCRA 433

SECOND DIVISION

MARCELINO DOMINGO,
G.R. No. 169122
Petitioner,

Present:
CARPIO, J., Chairperson,
- versus CORONA,*
BRION,
DEL CASTILLO, and
PEREZ, JJ.
COURT OF APPEALS,
AGAPITA DOMINGO,
ANA DOMINGO, HEIRS OF
GAUDENCIO DOMINGO, namely:
DOROTEO DOMINGO,
JULITA DOMINGO,
AMANDO DOMINGO, and
ARCEL DOMINGO; HEIRS OF
JULIAN DOMINGO, namely:
JULIAN DOMINGO, JR. and
PONCIANO DOMINGO; HEIRS
OF EDILBERTA DOMINGO, namely:
ANITA DOMINGO and
ROSIE DOMINGO; HEIR OF
FELIPE DOMINGO, namely:
LORNA DOMINGO; and HEIRS OF

GERONIMO DOMINGO, namely:

EMILY DOMINGO and
ARISTON
DOMINGO
represented
by
Promulgated:
ROLANDO DOMINGO,
Respondents.
February 2, 2010
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --------------------x

RESOLUTION
CARPIO, J.:
This is a petition[1] for certiorari under
Rule 65 of the Rules of Court. The petition
challenges the 5 April[2] and 10 June[3] 2005
Resolutions of the Court of Appeals in CA-G.R. SP
No. 89023. The Court of Appeals dismissed the
petition[4] for certiorari, with prayer for issuance
of a temporary restraining order, filed by
Marcelino Domingo (Marcelino) for failure to

serve the pleadings personally and for failure to

provide a written explanation why the service
was not done personally.
Before he died, Julio Domingo (Julio)
allegedly executed a Deed of Absolute Sale over
a 4.1358-hectare parcel of land in favor of
Marcelinos
wife,
Carmelita
Mananghaya
(Mananghaya). The property was situated in
Burgos, Sto. Domingo, Nueva Ecija, and was
covered by Transfer Certificate of Title No. NT87365.
Agapita and Ana Domingo, and the heirs of
Gaudencio, Julian, Edilberta, Modesta, Felipe,
and Geronimo Domingo (the Domingos) filed
before the Regional Trial Court (RTC), Judicial
Region 3, Branch 37, Baloc, Sto. Domingo,
Nueva Ecija, a complaint against Marcelino and
Mananghaya for the annulment of the Deed of
Absolute Sale. The Domingos alleged that Julios
signature in the deed was forged.

In its 3 November 1993 Decision,[5] the

RTC held that Julios signature in the Deed of
Absolute Sale was forged; thus, the deed was
void.
The
RTC
ordered
Marcelino
and
Mananghaya to deliver possession of the
property to the Domingos.
Marcelino and Mananghaya appealed the 3
November 1993 Decision to the Court of
Appeals. In its 14 July 2000 Decision, the Court
of Appeals dismissed the appeal. The 14 July
2000 Decision became final and executory.
Thus, on 4 August 2003, the RTC issued a writ of
execution. On 25 August 2003, the Domingos
gained possession of the property.
Marcelino filed with the Department of
Agrarian Reform (DAR) a petition[6] dated 25
August 2003 praying that he be declared the
tenant-beneficiary of the property.
Around April 2004, Marcelino reentered
and retook possession of the property. The

Domingos filed before the RTC a motion to cite

Marcelino
in
contempt. Marcelino
and
Mananghaya filed before the Court of Appeals a
petition,[7] dated 28 April 2004, for certiorari,
prohibition and mandamus. They prayed that:
1.
Pending hearing a preliminary
injunction be issued against the
[RTC]
enjoining and prohibiting to implement the
writ of executed
[sic] (Exh. M);
2.
Annulling the writ of execution dated
August 23, 2003;
3.
Annulling the last portion of the
decision in Civil Case No. 1218 which states:
[]to deliver the possession of the land in
question to
the plaintiffs. (par. 5 Decision
dated November 3, 1993).
4.
Ordering the denial and or dismissal
of the motion for contempt
filed by the
private respondent against the petitioners.[8]

In its 26 May 2004 Order, the RTC found

Marcelino in contempt, fined him P25,000 and
ordered his arrest and imprisonment. However,
the sheriff of the RTC no longer served the 26
May 2004 Order because Marcelino declared in
writing that he would deliver possession of the

property to the Domingos. In its 8 June 2004,

Resolution,[9] the Court of Appeals dismissed
outright Marcelino and Mananghayas 28 April
2004 petition.
Later, however, Marcelino employed six
men to reenter the property. On 14 June 2004,
the RTC issued warrants of arrest against
Marcelino and the six men. Marcelino and a
certain Genero Salazar (Salazar) were arrested
and were detained at the Philippine National
Police station in Sto. Domingo, Nueva Ecija. On
17 and 23 June 2004, Genero and Marcelino,
respectively, were released after declaring in
writing that they would no longer interfere with
the Domingos possession of the property. The
RTC warned Marcelino that a warrant for his
arrest shall be deemed automatically issued if
he reenters the property.
In its 4 October 2004 Order,[10] the DAR
granted Marcelinos 25 August 2003 petition,
placed 10.0108 hectares of land including the

property under the coverage of Republic Act

(RA) No. 6657, and named Marcelino as one of
the tenant-beneficiaries.
Agapita Domingo
(Agapita) filed a motion for reconsideration of
the 4 October 2004 Order. Marcelino reentered
and retook possession of the property.
The Domingos filed before the RTC another
motion to cite Marcelino in contempt, and for
the issuance of a warrant for his arrest. In its 23
December 2004 Order,[11] the RTC stated that:
In the partial return, dated December
9, 2004, of Sheriff Crispino Magbitang acting
per order, dated December 1, 2004 of this
Court, he confirmed that when he went to the
subject property on December 7, 2004, about
3:00 p.m., he saw six (6) men tilling and
plowing the land-in-question but who, upon
seeing him, stopped working, gathered their
agricultural implements and left. x x x
Dorenzo Domingo, brother of defendant
Marcelino Domingo, confirmed to the sheriff
the re-entry on the land in question by his
brother, the barangay captain of the place
where said land is situated, who bragged of
an alleged decision of the DARAB regional
office in San Fernando City, Pampanga,
making him the legal owner of the subject

land.
The evidence of the plaintiffs also
showed that defendant Marcelino Domingo
had actually fenced the subject property.
This Court, notwithstanding its already
final order of May 26, 2004, finding and
declaring defendant Marcelino Domingo in
contempt of court as well as the order of June
23, 2004 wherein it warned of the automatic
re-issuance of a warrant of arrest against him
and any other acting in his behalf in the event
of reentry and retaking possession of the
subject property, set the present motion for
hearing on December 15, 2004 to afford
defendant Marcelino Domingo the opportunity
to explain his side even only for the purpose
of mitigating the legal consequences of his
very stubborn arrogance that amounted to
open defiance of the power of contempt of
this Court.
Unfortunately, not only did defendant
Marcelino Domingo refuse to receive the
notice of the hearing set on December 15,
2004, but he actually disregarded it by failing
to appear on said date.
Again, to give the defendant another
chance, the hearing set on December 15,
2004 was reset to December 20, 2004, as
requested by defendants counsel Atty.
Restituto M. David x x x but again, none of

them appeared on said date nor file [sic] any

comment on the same.
With defendant Marcelino Domingos
cavalier attitude towards it, this Court now
feels its authority ignored and belittled and its
power of contempt challenged and tested of
its worth by said defendant who, ironically, as
barangay head and, as such, a person in
authority himself, should first be the paragon
in upholding the rule of law.
Even if granted that defendant
Marcelino Domingo had awarded [sic]
ownership of the subject land by the DARAB,
still he could not have taken the law in his
own hands by simply taking over thereof
without any judicial order and thereby ousting
therefrom the plaintiffs who [sic], this Court,
had given legal possession thereof pursuant
to a decision of the Court of Appeals which
had already long become final and executory.
WHEREFORE, premises considered,
the present motion is granted:
1.

Ordering the issuance of a

continuing warrant of arrest and
detention of defendant Marcelino
Domingo at the Nueva Ecija
Provincial Jail, Caalibangbangan,
Cabanatuan City for a period of
Thirty (30) days until further order
from this Court;

2.

Ordering defendant Marcelino

Domingos further detention at the
said jail until he shall have
effectively
surrendered
and
redelivered
possession
of
the
subject property to the plaintiffs;
3.
Ordering the forfeiture in favor of
the plaintiffs of all the movable
improvements put or introduced on
the subject property by defendant
Marcelino Domingo;
4.
Ordering the issuance of a writ of
execution for the satisfaction of the
fine of P25,000.00 per the Order,
dated May 26, 2004[;]
5.
Ordering the issuance of a [sic]
continuing warrants for the arrest of
all
other
persons
working,
cultivating, tilling and planting on
the subject landholding in behalf of
defendant Marcelino Domingo, and
under his control, direction and
supervision.[12]

Marcelino
reconsideration of
Order.

filed
a
motion
for
the 23 December 2004

In its 17 February 2005 Order,[13] the DAR

granted Agapitas motion for reconsideration

and set aside the 4 October 2004 Order. The
DAR held that the property was not covered by
RA No. 6657 because it was less than five
hectares. The DAR stated that:
From the documents submitted by the
movant, it appears that the subject property
of 4.1358 hectares covered by TCT No. 87365
is the only landholdings owned by Julio
Domingo. He was only an administrator of
the 5.8831 hectares, therefore, the 4.1358
hectares cannot be covered by land reform
law either under PD 27/RA 6657 since the
same is way below the ceiling mandated by
agrarian reform law.[14]

In its 4 March 2005 Order,[15] the RTC

denied Marcelinos motion for reconsideration.
The RTC held that:
In his Sinumpaang Salaysay of June
22, 2004 on the basis of which this Court
ordered his release from jail, defendant
Marcelino never mentioned anything about
the distinction of his possession of the subject
property between that in the concept of
owner and in the concept of a tenant-lessee.
Even if he did, that would not have mattered

because the concept of possession in the

instance [sic] case was never in issue.
Besides, his undertaking in the said sworn
statement was clearly worded that he would
never again re-enter or retake possession of
the subject land either by himself of [sic] by
his agents and he would bar others from
entering the same.
It will now appear that he had foisted
a contumacious lie to this Court with his
declaration in the said sworn statement to
obtain his release from jail. This warrant his
being cited for another contempt of this
Court.
Actually even if defendant Marcelino
had been awarded ownership of the subject
land by the DARAB, still he could not have
taken the law in his own hands by simply
taking over thereof without any judicial order
and thereby ousting therefrom the plaintiffs
who [sic], this Court, had given legal
possession thereof pursuant to a decision of
the Court of Appeals which had already long
become final and executory.
But the fact is, the Order of the
DARAB relied upon by the defendant
Marcelino did not grant him any specific
portion of the land declared to be within the
coverage of PD27/RA 6657 because the same
was yet, by its terms, to be distributed to the
qualified beneficiaries thereof and defendant

Marcelino
being
beneficiaries.

only

one

of

such

What
accentuates
defendant
Marcelino contemnary [sic] act of reentering
and retaking possession of the subject land
was the fact that he did so without even
waiting for the finality of the order relied upon
by him. As it has turned out the DAR Region
III had reversed its order of October 4, 2004
in another order, dated February 17, 2005,
copy of which was presented by the plaintiff
to this Court by way of manifestation filed on
February 23, 2005, SETTING ASIDE the
Order, dated October 4, 2004, and a new one
is hereby issued DENYING the petition for
coverage filed by Marcelino Domingo for utter
lack of merit.
It is now very clear to this Court that
defendant Marcelinos re-entry and retaking
possession and cultivation of the subject land
was sheer display of stubborn arrogance and
an open, deliberate and contemptuous
defiance of its order and processes.
WHEREFORE, premises considered,
the Motion for Reconsideration of defendant
Marcelino Domingo is hereby denied and
further ordering that:
1.

The order granting the issuance of

a
warrant
of
arrest
against
defendant Marcelino Domingo is

hereby maintained;
2.
Defendant Marcelino Domingo is
again found and declared in
contempt of Court and penalized
with imprisonment of Twenty (20)
days;
3.
Defendant Marcelino Domingos
further detention at the Nueva Ecija
Provincial Jail until he shall have
effectively
surrendered
and
redelivered
possession
of
the
subject land to plaintiffs;
4.
Ordering the forfeiture in favor of
the plaintiffs of all the movable
improvements put or introduced on
the subject property by defendant
Marcelino Domingo[;]
5.

6.

Ordering the issuance of a writ of

execution for the satisfaction of The
fine of P25,000.00 per the Order,
dated May 26, 2004[;]
Ordering the issuance of a
continuing warrants [sic] for the
arrest of all other persons working,
cultivating, tilling and planting on
the subject landholding in behalf of
defendant Marcelino Domingo, and
under his control, direction and
supervision.[16]

Marcelino filed before the Court of Appeals

a petition for certiorari under Rule 65 of the

Rules of Court, dated 21 March 2005, with
prayer for the issuance of a temporary
restraining order. Marcelino alleged that the RTC
had no jurisdiction to order him to deliver
possession of the property to the Domingos and
that the RTC gravely abused its discretion in
finding him in contempt.
In its 5 April 2005 Resolution, the Court of
Appeals dismissed outright Marcelinos petition.
The Court of Appeals held that:
This petition for certiorari faces
outright dismissal for three (3) fundamental
reasons, namely:
(1)
There is no written explanation
to justify service by mail in lieu of the
preferred mode of personal service, this in
violation of Section 11, Rule 13, of the [Rules
of Court] x x x.
Net result: The petition is deemed NOT filed.
(2)
The
following
copies
of
pertinent pleadings and orders that would
support the allegations in the petition have
not been attached thereto as annexes, to wit:
(a) The complaint for annulment of sale

with damages filed with the Regional

Trial Court, Branch 37, Baloc, Sto.
Domingo, Nueva Ecija;
(b) The RTC decision of November 3,
1993;
(c) The petition for coverage under PD
27 filed with DAR, Regional Office, San
Fernando, Pampanga;
(d) The October 4, 2004 DAR order;
(e) The motion for reconsideration filed
with DAR, Reg. III, San Fernando,
Pampanga;
(f) DAR order of February 17, 2005; and,
(g) The notice of appeal filed on March
8, 2005.
this in violation of Section 3, Rule 46 of the
1997 Rules x x x.
(3)
The prayer for temporary
restraining
order
failed
to
manifest
willingness to post the necessary injunctive
bond, in violation of Section 4, Rule 58.[17]

Marcelino
filed
a
motion[18]
for
reconsideration of the 5 April 2005 Resolution.
In its 10 June 2005 Resolution, the Court of
Appeals denied the motion. The Court of
Appeals held that Marcelinos failure to file a
written explanation to justify service by mail in
lieu of the preferred mode of personal service is

an absolutely insurmountable obstacle to the

success of this motion for reconsideration.[19]
Marcelino
filed
another
motion[20]
for
reconsideration. In its 19 July 2005 Resolution,
the Court of Appeals noted the motion. The
Court of Appeals held that, We cannot accept
the motion for reconsideration for the reason
that a second motion for reconsideration of a
final order is a prohibited pleading.[21]
Hence, the present petition. Marcelino
alleges that the Court of Appeals gravely abused
its discretion in dismissing the 21 March 2005
petition. He states that:
While it is true that petitioner failed to
incorporate a written explanation to justify
service by mail in lieu of the preferred mode
of personal service in his Petition, it was
grave abuse of discretion for public
respondent Court of Appeals to dismiss his
Petition on this ground. x x x [L]itigations
should be decided as much as possible on
their merits rather than technicalities x x x.
x x x Section 11, Rule 13 of the 1997
Rules of Civil Procedure is merely directory

and it is incumbent upon the court to use its

discretion in determining whether substantial
justice will be served (or rights unjustifiably
prejudiced) if it resolves to dismiss a petition
because of non-compliance with a mere
directory rule.[22]

The petition is unmeritorious. Section 11,

Rule 13 of the Rules of Court states:
SEC. 11. Priorities in modes of service
and filing. Whenever practicable, the
service and filing of pleadings and other
papers shall be done personally. Except with
respect to papers emanating from the court,
a resort to other modes must be
accompanied by a written explanation why
the service or filing was not done personally.
A violation of this Rule may be cause to
consider the paper as not filed.

Section 11 is mandatory. In Solar Team

Entertainment, Inc. v. Judge Ricafort,[23] the
Court held that:
Pursuant x x x to Section 11 of Rule
13, service and filing of pleadings and
other
papers
must,
whenever
practicable, be done personally; and if
made through other modes, the party

concerned must provide a written

explanation as to why the service or
filing was not done personally. x x x
Personal service and filing are
preferred for obvious reasons. Plainly, such
should expedite action or resolution on a
pleading, motion or other paper; and
conversely, minimize, if not eliminate, delays
likely to be incurred if service or filing is done
by mail, considering the inefficiency of postal
service. Likewise, personal service will do
away with the practice of some lawyers who,
wanting to appear clever, resort to the
following less than ethical practices: (1)
serving or filing pleadings by mail to catch
opposing counsel off-guard, thus leaving the
latter with little or no time to prepare, for
instance,
responsive
pleadings
or
an
opposition; or (2) upon receiving notice from
the post office that the registered parcel
containing the pleading of or other paper
from the adverse party may be claimed,
unduly procrastinating before claiming the
parcel, or, worse, not claiming it at all,
thereby causing undue delay in the
disposition of such pleading or other papers.
If only to underscore the
mandatory nature of this innovation to
our set of adjective rules requiring
personal service whenever practicable,
Section 11 of Rule 13 then gives the
court the discretion to consider a

pleading or paper as not filed if the

other modes of service or filing were
resorted to and no written explanation
was made as to why personal service
was not done in the first place. The
exercise of discretion must, necessarily,
consider the practicability of personal service,
for Section 11 itself begins with the clause
whenever practicable.
We thus take this opportunity to
clarify that under Section 11, Rule 13 of the
1997 Rules of Civil Procedure, personal
service and filing is the general rule, and
resort to other modes of service and
filing,
the
exception.
Henceforth,
whenever personal service or filing is
practicable, in light of the circumstances
of time, place and person, personal
service or filing is mandatory. Only
when personal service or filing is not
practicable may resort to other modes
be
had,
which
must
then
be
accompanied by a written explanation as
to why personal service or filing was not
practicable to begin with. In adjudging the
plausibility of an explanation, a court shall
likewise consider the importance of the
subject matter of the case or the issues
involved therein, and the prima facie merit of
the pleading sought to be expunged for
violation of Section 11. This Court cannot rule
otherwise, lest we allow circumvention of the
innovation introduced by the 1997 Rules in

order to obviate delay in the administration of

justice.
xxxx
x x x [F]or the guidance of the
Bench and Bar, strictest compliance with
Section 11 of Rule 13 is mandated.[24]
(Emphasis supplied)

In petitions for certiorari, procedural rules

must
be
strictly
observed.
In
Athena
Computers, Inc. v. Reyes,[25] the Court held
that:
Certiorari, being an extraordinary
remedy, the party who seeks to avail of the
same must strictly observe the rules laid
down by law.
xxxx
The acceptance of a petition for
certiorari as well as the grant of due course
thereto is, in general, addressed to the sound
discretion of the court. Although the court
has absolute discretion to reject and dismiss a
petition for certiorari, it does so only x x x
when there are procedural errors, like
violations of the Rules of Court.[26]

Liberal application of procedural rules is

allowed only when two requisites are present:
(1) there is a plausible explanation for the noncompliance, and (2) the outright dismissal would
defeat the administration of justice. In Tible &
Tible Company, Inc. v. Royal Savings and Loan
Association,[27] the Court held that the two
pre-requisites for the relaxation of the rules are:
(1) justifiable cause or plausible reason for noncompliance; and (2) compelling reason to
convince the court that outright dismissal of the
petition would seriously impair the orderly
administration of justice.[28] Both requisites
are lacking in the present case.
WHEREFORE, we DISMISS the petition.
We AFFIRM the 5 April and 10 June 2005
Resolutions of the Court of Appeals in CA-G.R.
SP
No. 89023.
SO ORDERED.

ANTONIO T. CARPIO

Associate Justice

WE CONCUR:

RENATO C. CORONA
Associate Justice

ARTURO D. BRION

MARIANO C.

DEL CASTILLO
Associate

Justice

Associate Justice

JOSE

P.

PEREZ
Associate Justice

ATTESTATION
I attest that the conclusions in the above
Resolution had been reached in consultation
before the case was assigned to the writer of the

opinion of the Courts Division.

ANTONIO
T. CARPIO
Associate Justice

Chairperson

CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, and the Division

Chairpersons

Attestation, I certify that the conclusions in the

above

Resolution

had

been

reached

in

consultation before the case was assigned to the

writer of the opinion of the Courts Division.

REYNATO S. PUNO

Chief Justice
Designated additional member per Special Order No. 812.
[1]
Rollo, pp. 3-30.
[2]
Id. at 57-59. Penned by Associate Justice Renato C.
Dacudao, with Associate Justices Edgardo F.
Sundiam and Japar
B. Dimaampao concurring.
[3]
Id. at 64-65.
[4]
Id. at 44-55.
[5]
Id. at 72-76. Penned by Judge Senen R. Saguyod.
[6]
Id. at 77-82.
[7]
Id. at 140-147.
[8]
Id. at 144-145.
[9]
Id. at 149-150. Penned by Associate Justice Jose Catral
Mendoza, with Associate Justices Eugenio
S. Labitoria and Jose
L. Sabio, Jr. concurring.
[10]
Id. at 83-85.
[11]
Id. at 36-38. Penned by Judge Santiago M. Arenas.
[12]
Id. at 37-38.
[13]
Id. at 86-88.
[14]
Id. at 87.
[15]
Id. at 39-43.
[16]
Id. at 41-43.
[17]
Id. at 57-59.
[18]
Id. at 60-63.
[19]
Id. at 64.
[20]
Id. at 66-69.
[21]
Id. at 70.
[22]
Id. at 18.
*

[23]
[24]
[25]
[26]
[27]
[28]

355 Phil. 404 (1998).

Id. at 412-415.
G.R. No. 156905, 5 September 2007, 532 SCRA 343.
Id. at 348-350.
G.R. No. 155806, 8 April 2008, 550 SCRA 562.
Id. at 583.

SECOND DIVISION
SPS. DOMINGO M. BELEN and
175334
DOMINGA P. BELEN, herein
represented by their attorney-

G.R. No.

Present:
in-fact NERY B. AVECILLA,
Petitioners,
QUISUMBING, J.,
Chairperson,
CARPIO-MORALES,
TINGA,
- versus NAZARIO, and
VELASCO,
JR., JJ.
HON. PABLO R. CHAVEZ, Presiding
Promulgated:
Judge, RTC-Branch 87, Rosario,
Batangas and all other persons acting
March 26, 2008
under his orders and SPS. SILVESTRE
N. PACLEB and PATRICIA A. PACLEB,
represented herein by their attorney-infact JOSELITO RIOVEROS,
Respondents.
x--------------------------------------------------------------------------x

DECISION
TINGA, J.:
This is a petition for review on certiorari
under Rule 45 of the 1997 Rules of Civil
Procedure
assailing
the
Decision[1]
and
Resolution[2] of the Court of Appeals in CA-G.R.
SP No. 88731. The appellate courts decision
dismissed the petition for certiorari which
sought to nullify the orders of the Regional Trial
Court (RTC) of Rosario, Batangas, Branch 87,
denying herein petitioners motion to quash writ
of
execution
and
their
motion
for
reconsideration. The Court of Appeals resolution
denied petitioners motion for reconsideration of
the decision.
The instant petition originated from the
action for the enforcement of a foreign judgment
against herein petitioners, spouses Domingo and
Dominga Belen, filed by private respondent
spouses
Silvestre
and
Patricia
Pacleb,

represented by their attorney-in-fact, Joselito

Rioveros, before the RTC of Rosario, Batangas.
The
complaint
alleged
that
private
respondents secured a judgment by default in
Case No. NC021205 rendered by a certain Judge
John W. Green of the Superior Court of the State
of California. The judgment ordered petitioners
to pay private respondents the amount of
$56,204.69 representing loan repayment and
share in the profits plus interest and costs of
suit. The summons was served on petitioners
address in San Gregorio, Alaminos, Laguna, as
was alleged in the complaint, and received by a
certain Marcelo M. Belen.
On 5 December 2000, Atty. Reynaldo
Alcantara entered his appearance as counsel for
petitioners, stating that his legal services were
retained at the instance of petitioners relatives.
Atty. Alcantara subsequently filed an answer,
alleging that contrary to private respondents
averment, petitioners were actually residents

ofCalifornia, USA. The answer also claimed that

petitioners liability had been extinguished via a
release of abstract judgment issued in the same
collection case.

In view of petitioners failure to attend the

scheduled pre-trial conference, the RTC ordered
the ex parte presentation of evidence for private
respondents before the branch clerk of court. On
16 March 2001, before the scheduled ex parte
presentation of evidence, Atty. Alcantara filed a
motion to dismiss, citing the judgment of
dismissal issued by the Superior Court of the
State of California, which allegedly dismissed
Case No. NC021205. The RTC held in abeyance
the ex parte presentation of evidence of private
respondents and the resolution of Atty.
Alcantaras motion pending the submission of a
copy of the judgment of dismissal.
For failure to present a copy of the alleged
judgment of dismissal, the RTC denied the

motion to dismiss in an Order dated 19 February

2002. Through a motion, Atty. Alcantara sought
the reinstatement of the motion to dismiss by
attaching a copy of the said foreign judgment.
For their part, private respondents filed a
motion for the amendment of the complaint. The
amended complaint attached to the motion
averred
that
private
respondents
were
constrained to withdraw their complaint against
petitioners from the California court because of
the prohibitive cost of litigation, which
withdrawal was favorably considered by said
court. The amended complaint prayed for
judgment ordering petitioners to satisfy their
obligation to private respondents in the amount
of P2,810,234.50.

The answer to the amended complaint

raised the defenses of lack of cause of action,

res judicata and lack of jurisdiction over the
subject matter and over the persons of the
defendants since the amended complaint had
raised an entirely new cause of action which
should have been ventilated in another
complaint.
Petitioners and Atty. Alcantara failed to
appear at the rescheduled pre-trial conference.
Thus, the RTC declared petitioners in default and
allowed private respondents to present evidence
ex parte. On 15 March 2003, Atty. Alcantara
passed away without the RTC being informed of
such fact until much later.
On 5 August 2003, the RTC rendered a
Decision, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing,
the defendants are hereby directed to pay the
plaintiffs the following, to wit:
a)

The amount of P656,688.00

(equivalent to $27,362.00) in an

exchange ratio of One (1) dollar is to

P24.00 Philippine Currency;
b)
Plus 30% of P656,688.00
which is P197,006.40;
c)
Plus P1,576,051.20 (30% for
eight (8) years, 1995-2003); and
d)
Plus 12% per annum as
interest of the principal obligation
(P656,688.00) from 1995 to 2003;
SO ORDERED.[3]

A copy of the RTC decision intended for

Atty. Alcantara was returned with the notation
Addressee Deceased. A copy of the RTC
decision was then sent to the purported address
of petitioners in San Gregorio, Alaminos, Laguna
and was received by a certain Leopoldo Avecilla
on 14 August 2003. Meanwhile, immediately
after the promulgation of the RTC decision,
private respondents filed an ex-parte motion for
preliminary attachment which the RTC granted

in its Order dated 15 September 2003.

On 24 November 2003, private respondents
sought the execution of the RTC decision. In its
Order dated 10 December 2003, the RTC
directed the issuance of a writ of execution.
Upon the issuance of a writ of execution, the
real properties belonging to petitioners were
levied upon and the public auction scheduled on
15 January 2004.
On 16 December 2003, Atty. Carmelo B.
Culvera entered his appearance as counsel for
petitioners. On 22 December 2003, Atty. Culvera
filed a Motion to Quash Writ of Execution (With
Prayer to Defer Further Actions). On 6 January
2004, he filed a Notice of Appeal from the RTC
Decision averring that he received a copy
thereof only on 29 December 2003.
In an Order dated 7 July 2004, the RTC
denied the motion seeking the quashal of the
writ of execution.[4] Subsequently, the RTC

denied Atty. Culveras motion for reconsideration

of said order.

Thus, petitioners filed a Rule 65 petition

before the Court of Appeals, imputing on the RTC
grave abuse of discretion tantamount to lack or
excess of jurisdiction (1) in rendering its decision
although it had not yet acquired jurisdiction over
their persons in view of the improper service of
summons; (2) in considering the decision final
and executory although a copy thereof had not
been properly served upon petitioners; (3) in
issuing the writ of execution before the decision
had become final and executory and despite
private respondents failure to comply with the
procedural requirements in filing the motion for
the issuance of the said writ; and (4) in denying
petitioners motion to quash the writ of
execution and notice of appeal despite sufficient
legal bases in support thereof.
On 31 July 2006, the Court of Appeals

rendered the assailed Decision dismissing the

petition for certiorari. On 3 November 2006, it
issued
the
assailed
Resolution
denying
petitioners motion for reconsideration.
Hence, the instant petition, attributing to
the Court of Appeals the following errors:
THE COURT OF APPEALS COMMITTED
SERIOUS ERRORS [OF] LAW IN RULING THAT
THE TRIAL COURT ACTED WITHIN ITS
JURISDICTION OR DID NOT COMMIT GRAVE
ABUSE OF DISCRETION WHEN IT CONSIDERED
THE APPEARANCE OF THE COUNSEL AS THEIR
SUBMISSION TO THE JURISDICTION OF THE
TRIAL COURT ALTHOUGH SUCH APPEARANCE
OF THE SAID COUNSEL WAS WITHOUT THEIR
EXPRESS AUTHORITY BUT WAS DONE BY
THEIR ALLEGED RELATIVES.

THE COURT OF APPEALS COMMITTED

SERIOUS ERRORS [OF] LAW WHEN IT RULED
THAT THE DECISION OF THE TRIAL COURT
WAS DULY SERVED UPON THE PETITIONERS
THROUGH
THEIR
ALLEGED
RELATIVES
ALTHOUGH THE RECORDS OF THIS CASE

CLEARLY SHOWS THAT THE SAID PETITIONERS

ARE RESIDENTS OF UNITED STATES OF
AMERICA.[5]

In a Resolution dated 22 January 2007, the

Court denied the petition because it is not
accompanied by a valid verification and
certification of non-forum shopping. Petitioners
sought reconsideration, which the Court granted
in a Resolution dated 16 April 2007. The Court
also ordered the reinstatement of the petition
and the filing of a comment.

The instant petition raises two issues, thus:

(1) whether the RTC acquired jurisdiction over
the persons of petitioners through either the
proper service of summons or the appearance of
the late Atty. Alcantara on behalf of petitioners
and (2) whether there was a valid service of the
copy of the RTC decision on petitioners.

On one hand, courts acquire jurisdiction

over the plaintiffs upon the filing of the

complaint. On the other hand, jurisdiction over
the defendants in a civil case is acquired either
through the service of summons upon them or
through their voluntary appearance in court and
their submission to its authority. As a rule, if
defendants have not

been summoned, the court acquires no

jurisdiction over their person, and a judgment
rendered against them is null and void. To be
bound by a decision, a party should first be
subject to the courts jurisdiction.[6]
In Asiavest Limited v. Court of Appeals,[7]
the Court underscored the necessity of
determining first whether the action is in
personam, in rem or quasi in rembecause the
rules on service of summons under Rule 14 of
the Rules of Court of the Philippines apply
according to the nature of the action.[8] The
Court elaborated, thus:

In an action in personam, jurisdiction

over the person of the defendant is necessary
for the court to validly try and decide the
case. Jurisdiction over the person of a
resident defendant who does not voluntarily
appear in court can be acquired by personal
service of summons as provided under
Section 7, Rule 14 of the Rules of Court. If he
cannot be personally served with summons
within a reasonable time, substituted service
may be made in accordance with Section 8 of
said Rule. If he is temporarily out of the
country, any of the following modes of service
may be resorted to: (1) substituted service
set forth in Section 8; (2) personal service
outside the country, with leave of court; (3)
service by publication, also with leave of
court; or (4) any other manner the court may
deem sufficient.
However, in an action in personam
wherein the defendant is a non-resident
who does not voluntarily submit himself
to the authority of the court, personal
service of summons within the state is
essential
to
the
acquisition
of
jurisdiction over her person. This
method of service is possible if such
defendant is physically present in the
country. If he is

not found therein, the court cannot

acquire jurisdiction over his person and
therefore cannot validly try and decide
the case against him. An exception was
laid down inGemperle v. Schenker
wherein a non-resident was served with
summons through his wife, who was a
resident of the Philippines and who was
his representative and attorney-in-fact
in a prior civil case filed by him;
moreover, the second case was a mere
offshoot of the first case.
On the other hand, in a proceeding in
rem or quasi in rem, jurisdiction over the
person of the defendant is not a prerequisite
to confer jurisdiction on the court provided
that the court acquires jurisdiction over the
res. Nonetheless, summons must be served
upon the defendant not for the purpose of
vesting the court with jurisdiction but merely
for satisfying the due process requirements.
Thus, where the defendant is a non-resident
who is not found in the Philippines and (1) the
action affects the personal status of the
plaintiff; (2) the action relates to, or the
subject matter of which is property in the
Philippines in which the defendant has or
claims a lien or interest; (3) the action seeks
the exclusion of the defendant from any
interest in the property located in the
Philippines; or (4) the property of the
defendant has been attached in the

Philippines service of summons may be

effected by (a) personal service out of the
country, with leave of court; (b) publication,
also with leave of court; or (c) any other
manner the court may deem sufficient.[9]

The action filed against petitioners, prior to

the amendment of the complaint, is for the
enforcement of a foreign judgment in a
complaint for breach of contract whereby
petitioners were ordered to pay private
respondents the monetary award. It is in the
nature of an action in personam because private
respondents are suing to enforce their personal
rights under said judgment.

Applying the foregoing rules on the service

of summons to the instant case, in an action in
personam, jurisdiction over the person of the
defendant who does not voluntarily submit
himself to the authority of the court is necessary
for the court to validly try and decide the case

through personal service or, if this is not

possible and he cannot be personally served,
substituted service as provided in Rule 14,
Sections 6-7.[10]
In an action strictly in personam, personal
service on the defendant is the preferred mode
of service, that is, by handing a copy of the
summons to the defendant in person. If the
defendant, for justifiable reasons, cannot be
served with the summons within a reasonable
period, then substituted service can be resorted
to. While substituted service of summons is
permitted, it is extraordinary in character and
in derogation of the usual method of
service.[11]
If defendant cannot be served with
summons because he is temporarily abroad, but
otherwise he is a Philippine resident, service of
summons may, by leave of court, be effected
out of the Philippines under Rule 14, Section 15.
In all of these cases, it should be noted,
defendant must be a resident of the Philippines,

otherwise an action in personam cannot be

brought because jurisdiction over his person is
essential to make a binding decision.[12]

However, the records of the case reveal

that herein petitioners have been permanent
residents of California, U.S.A. since the filing of
the action up to the present. From the time Atty.
Alcantara filed an answer purportedly at the
instance of petitioners relatives, it has been
consistently maintained that petitioners were
not physically present in the Philippines. In the
answer, Atty. Alcantara had already averred that
petitioners were residents of California, U.S.A.
and that he was appearing only upon the
instance of petitioners relatives.[13] In addition,
private respondents attorney-in-fact, Joselito
Rioveros,
testified
during
the
ex
partepresentation of evidence that he knew
petitioners to be former residents of Alaminos,

Laguna but are now living in California, U.S.A.

[14] That being the case, the service of
summons on petitioners purported address in
San Gregorio, Alaminos, Laguna was defective
and did not serve to vest in court jurisdiction
over their persons.
Nevertheless, the Court of Appeals
correctly concluded that the appearance of Atty.
Alcantara and his filing of numerous pleadings
were sufficient to vest jurisdiction over the
persons of petitioners. Through certain acts,
Atty. Alcantara was impliedly authorized by
petitioners to appear on their behalf. For
instance, in support of the motion to dismiss the
complaint, Atty. Alcantara attached thereto a
duly authenticated copy of the judgment of
dismissal and a photocopy

of the identification page of petitioner Domingo

Belens U.S. passport. These documents could

have been supplied only by petitioners,

indicating that they have consented to the
appearance of Atty. Alcantara on their behalf. In
sum,
petitioners
voluntarily
submitted
themselves through Atty. Alcantara to the
jurisdiction of the RTC.
We now come to the question of whether
the service of a copy of the RTC decision on a
certain Teodoro Abecilla is the proper reckoning
point in determining when the RTC decision
became final and executory.
The Court of Appeals arrived at its
conclusion on the premise that Teodoro Abecilla
acted as petitioners agent when he received a
copy of the RTC decision. For their part, private
respondents contend that the service of a copy
of the RTC decision on Atty. Alcantara,
notwithstanding his demise, is valid. On the
other hand, petitioners reiterate that they are
residents of California, U.S.A. and thus, the
service of the RTC decision of a residence which

is not theirs is not proper.

As a general rule, when a party is
represented by counsel of record, service of
orders and notices must be made upon said
attorney and notice to the client and to any
other lawyer, not the counsel of record, is not
notice in law. The exception to this rule is when
service upon the party himself has been ordered
by the court.[15] In cases where service was
made on the counsel of record at his given
address, notice sent to petitioner itself is not
even necessary.[16]
The following provisions under Rule 13 of
the Rules of Court define the proper modes of
service of judgments:
x

SEC. 2. Filing and service, defined.x x

Service is the act of providing a party

with a copy of the pleading or paper
concerned. x x x
SEC. 5. Modes of service.Service of

pleadings,
motions,
notices,
orders,
judgments and other papers shall be made
either personally or by mail.
SEC. 9. Service of judgments, final
orders or resolutions. Judgments, final
orders or resolutions shall be served either
personally or by registered mail. When a
party summoned by publication has failed to
appear in the action, judgments, final orders
or resolutions against him shall be served
upon him also by publication at the expense
of the prevailing party.
SEC. 6. Personal service. Service of
the papers may be made by delivering
personally a copy to the party or his counsel,
or by leaving it in his office with his clerk or
with a person having charge thereof. If no
person is found in his office, or his office is
not known, or he has no office, then by
leaving the copy, between the hours of eight
in the morning and six in the evening, at the
partys or counsels residence, if known, with
a person of sufficient age and discretion then
residing therein.
SEC. 7. Service by mail. Service by
registered mail shall be made by depositing
the copy in the post office, in a sealed
envelope, plainly addressed to the party or
his counsel at his office, if known, otherwise
at his residence, if known, with postage fully
pre-paid, and with instructions to the

postmaster to return the mail to the sender

after ten (10) days if undelivered. If no
registry service is available in the locality of
either the sender or the addressee, service
may be done by ordinary mail.

SEC. 8. Substituted service. If service

of pleadings, motions, notices, resolutions,
orders and other papers cannot be made
under the two preceding sections, the office
and place of residence of the party or his
counsel being unknown, service may be
made by delivering the copy to the clerk of
court, with proof of failure of both personal
service and service by mail. The service is
complete at the time of such delivery.

In the instant case, a copy of the RTC

decision was sent first to Atty. Alcantara,
petitioners counsel of record. However, the
same was returned unserved in view of the
demise of Atty. Alcantara. Thus, a copy was
subsequently sent to petitioners last known
address in San Gregorio, Alaminos, Laguna,
which was received by a certain Leopoldo
Avecilla.

Undoubtedly, upon the death of Atty.

Alcantara, the lawyer-client relationship between
him and petitioners has ceased, thus, the
service of the RTC decision on him is ineffective
and did not bind petitioners.
The subsequent service on petitioners
purported last known address by registered
mail is also defective because it does not
comply
with
the
requisites
under
the
aforequoted Section 7 of Rule 13 on service by
registered mail. Section 7 of Rule 13
contemplates service at the present address of
the party and not at any other address of the
party. Service at the partys former address or
his last known address or any address other
than his present address does not qualify as
substantial compliance with the requirements of
Section 7, Rule 13. Therefore, service by
registered mail presupposes that the present
address of the party is known and if the person

who receives the same is not the addressee, he

must be duly authorized by the former to
receive the paper on behalf of the party.
Since the filing of the complaint, petitioners
could not be physically found in the country
because they had already become permanent
residents of California, U.S.A. It has been
established during the trial that petitioners are
former residents of Alaminos, Laguna, contrary
to the averment in the complaint that they
reside and may be served with court processes
thereat. The service of the RTC decision at their
former address in Alaminos, Laguna is defective
and does not bind petitioners.
On many occasions,[17] the Court has
strictly construed the requirements of the proper
service of papers and judgments. Both in Heirs
of Delos Santos v. Del Rosario[18] and Tuazon v.
Molina,[19] the service of the trial courts
decision at an adjacent office and the receipt
thereof by a person not authorized by the

counsel of record was held ineffective. Likewise,

the service of the decision made at the ground
floor instead of at the 9th floor of a building in the
address on record of petitioners counsel, was
held invalid in PLDT v. NLRC.[20] In these
cases, there was no constructive service of the
decision even if

the service was made at the offices adjacent to

the address on record of the parties counsels
and even if the copies eventually found their
way to persons duly authorized to receive
them.
In view of the foregoing, the running of the
fifteen-day period for appeal did not commence
upon the service of the RTC decision at the
address on record of Atty. Alcantara or at the
Laguna address. It is deemed served on
petitioners only upon its receipt by Atty. Culvera
on 29 December 2003. Therefore, the filing of
the Notice of Appeal on 06 January 2004 is

within the reglementary period and should be

given due course.
WHEREFORE, the instant petition for review
on certiorari is GRANTED and the Decision and
Resolution of the Court of Appeals in CA-G.R. SP
No. 88731 are REVERSED and SET ASIDE.
Accordingly, the orders dated 7 July 2004 and 2
February 2005 of the Regional Trial Court of
Rosario. Batangas, Branch 87 are SET ASIDE.
The RTC is also ordered to GIVE DUE COURSE to
the Notice of Appeal filed by Atty. Culvera on 06
January
2004
.
Costs
against
private
respondents.
SO ORDERED.

DANTE
TINGA

O.

Associate
Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CONCHITA CARPIO MORALES

CHICO-NAZARIO
Associate Justice
Associate Justice

MINITA V.

PRESBITERO J. VELASCO, JR.

Associate Justice
ATTESTATION
I attest that the conclusions in the above
Decision had been reached in consultation
before the case was assigned to the writer of the
opinion of the Courts Division.
LEONARDO

A.

QUISUMBING
Associate
Justice
Chairperson,
Second Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, and the Division Chairpersons
Attestation, it is hereby certified that the

conclusions in the above Decision had been

reached in consultation before the case was
assigned to the writer of the opinion of the
Courts Division.

REYNATO S.
PUNO
Chief
Justice

[1]Rollo, p. 16; dated 31 July 2006 and penned by J. Normandie

B. Pizarro and concurred in by JJ. Josefina Guevara-Salonga, Chairman
of the Seventeenth Division, and Aurora Santiago-Lagman.
[2]Id. at 26; dated 3 November 2006.
[3]CA rollo, p. 74.
[4]Id. at 23.
[5]Rollo, p. 4.
[6]Bank of the Philippine Islands v. Sps. Evangelista and LTS
Corp., G.R. No. 146553, 27 November 2002, 393 SCRA 187.

[7]357 Phil. 536 (1998).

[8]Id.
[9]Supra note 7 at 538. Emphasis supplied.
[10]Valmonte v. Court of Appeals, 322 Phil. 97 (1996).
[11]Manotoc v. Court of Appeals, G.R. No.130974, 16 August
2006, 499 SCRA 21, 33.
[12]Supra note 10 at 97.
[13]CA rollo, p, 47.
[14]Id. at 99.
[15]De Leon v. Court of Appeals, G.R. No. 138884, 6 June 2002,
383 SCRA 216.
[16]GCP-Manny Transport Services, Inc. v. Principe, G.R. No.
141484, 11 November 2005, 474 SCRA 555.
[17]See also Adamson Ozanan Educational Institution, Inc. v.
Adamson University Faculty and Employees Association, G. R. No.
86819, 9 November 1989, 179 SCRA 279; BPI-Family Savings Bank,
Inc. v. Court of Appeals, G. R. No. 94925, 22 April 1991, 196 SCRA 242.
[18]G.R. No. 139167, 29 June 2005, 462 SCRA 98.
[19]No. L-55697, 26 February 1981, 103 SCRA 365.
[20]No. L-60050, 213 Phil. 362 (1984).

SECOND DIVISION

REPUBLIC OF
THE
PHILIPPINES,

G.R. No.
175891

Petitioner,
Present:

CARPIO, J.,
Chairperson,
PERALTA,
- versus -

ABAD,
PEREZ,* and
MENDOZA, JJ.

RESINS,
INCORPORAT
ED,

Promulgated:
January 12,
2010

Respondent.
x-------------------------------------------------x

DECISION
CARPIO, J.:
The Case
G.R. No. 175891 is a petition for review1 assailing
the Decision2 promulgated on 25 May 2006 by the
Court of Appeals (CA) in CA-G.R. SP No. 78516. The
appellate court denied the petition filed by the
Republic of the Philippines (Republic) through the
Office of the Solicitor General (OSG). The appellate
court found no grave abuse of discretion on the
part of the Regional Trial Court of Misamis Oriental,

Branch 20, Cagayan de Oro City (RTC) in rendering

its 17 March 19933 Judgment and 17 January 19944
Amended Judgment, as well as in issuing its 7 July
19995 and 28 May 20036 Orders in Land
Registration Case No. N-91-012, LRA Record No. N62407. The RTC allowed the Land Registration
Authority (LRA) to issue a Decree of Registration in
favor of Resins, Incorporated (Resins, Inc.) over
eight lots in Jasaan, Misamis Oriental after the
RTCs Judgment7 dated 17 March 1993 became final
and executory.
The Facts
The appellate court narrated the facts as follows:
On 17 October 1991, [Resins, Inc.] filed x x x Land
Registration Case [No. N-91-012] before the [RTC] for
judicial confirmation of title over eight (8) parcels of land
situated in the Municipality of Jasaan, Misamis Oriental.
The initial hearing for said case was originally set on 4
February 1992. Prior to said date of hearing, the [LRA]
filed with the [RTC] a report recommending that an Order
be issued to [Resins, Inc.] directing it to submit the
names and complete postal addresses of the adjoining lot
owners, and that after complying with the said Order, the
initial hearing be reset on a date consistent with LRC
Circular No. 353.

Pursuant to the LRA recommendation, the application for

original registration of titles was amended. Thereupon,
the [RTC] issued an Order dated 17 January 1992 setting
the initial hearing on 30 April 1992.
On 10 February 1992, the OSG entered its appearance as
counsel of the Republic x x x. In its notice of appearance,
the [OSG] manifested thus:

The City Prosecutor of Cagayan de Oro City has

been authorized to appear in this case and,
therefore, should also be furnished notices of
hearings, orders, resolutions, decisions, processes.
However, as the Solicitor General retains
supervision and control of the representation in this
case and has to approve withdrawal of the case,
non-appeal or other actions which appear to
compromise the interests of the Government, only
notices of orders, resolutions, and decisions served
on him will bind the party represented.

On 27 February 1992, the OSG received the notice of

initial hearing of the application. The notice of the initial
hearing was also served on the Regional Executive
Director of the Department of Environment and Natural
Resources, the Secretary of the Department of Public
Works and Highways, the Director of the Bureau of Mines,
the Director of the Bureau of Fisheries and Aquatic
Resources, the Secretary of the Department of Agrarian
Reform, the Director of the Forest Management Bureau,
the Provincial Governor, the Provincial Fiscal, the

Provincial Treasurer, the Provincial Engineer, the Public

Works and Highways District Engineer, the Community
Environment and Natural Resources Officer, Land
Management Sector, the Municipal Mayor, the Municipal
Council of Jasaan, Misamis Oriental, the adjoining lot
owners, and to all whom it may concern.

The notice of initial hearing was published in the 16

March 1992 issue of the Official Gazette and the 11 March
1992 issue of the Golden Chronicle pursuant to Section
23 ofPresidential Decree No. 1529. On 19 March 1992,
the City Sheriff posted the notice on the parcels of land
sought to be registered, at the municipality building, and
in conspicuous places in the Municipality of Jasaan,
Misamis Oriental.

During the initial hearing on 30 April 1992, the [RTC]

issued an Order of general default against the whole
world except against [the Republic] who had filed its
opposition to the application and one RENATO BAUTISTA
who intimated to the [RTC] that he would file his
opposition.

Subsequent hearings were conducted on the following

dates: 16 July 1992, 23 July 1992, 15 September 1992,
and 16 December 1992.

On 08 January 1993, [Resins, Inc.] filed Applicants

Formal Offer of Documentary Evidence.

On 04 February 1993, the [RTC] issued an Order which

states:

Considering the fact that all the exhibits of the

applicant Resins, Incorporated were duly identified
and attested to by the witnesses for the applicant
and considering the fact that no opposition was
filed by the government to the said exhibits, all the
exhibits of the applicant from Exhibits A to N,
inclusive, are hereby admitted as part of the
testimonies of the witnesses for the applicant.

SO ORDERED.8

The Regional Trial Courts Ruling

On 17 March 1993, the RTC rendered its Judgment9
in favor of Resins, Inc. The dispositive portion
reads:

In [v]iew of the [f]oregoing, judgment is hereby rendered

finding applicant Resins Incorporated, as owner in fee
simple of all the lots sought to be registered Lot 980,
Cad-367, Lot 1371, Cad-367, Lot 1372, Cad-367, Lot
1373, Cad-367, Lot 1417, Cad-367, Lot 3462, Cad-267,
Lot 3463, Cad-367, and Lot 3465, Cad-367, all of Jasaan
Cadastre and havingregisterable [sic] titles thereto,
hereby decreeing that Lot Nos. 980, 1371, 1372, 1373,
1417, 3462, 3463, and 3465 be registered in the name of
Resins Incorporated, a corporation organized pursuant to
the laws of the Philippines with its main office located at
Jasaan, Misamis Oriental, in accordance with the technical
descriptions correspondingly marked as Exhibits A-2, B-2,
C-2, D-2, E-2, F-2, G-2, and H-2.

SO ORDERED.10

Despite the favorable judgment, Resins, Inc., was

unable to have the lots registered in its name
because of typographical errors in the RTCs 17
March 1993 Judgment. On 6 January 1994, Resins,
Inc. moved to correct the typographical errors and
alleged:

1. That on March 17, 1993, the [RTC] rendered judgment

approving the above-captioned application;

2. That up to the present no decree of registration has

been issued and upon inquiry from the [LRA] [Resins, Inc.]
learned that the reason is because [sic] there are two (2)
typographical errors in the judgment, to wit:

a. Lot No. 3464 appearing on page 2, subpar[.] (g),

line 1 should be Lot 3463 because par. 1 on the
application shows that the 7th lot applied for is Lot
3463;

b. That material omissions were made on page 4,

line 31 as follow[s]:

ORIGINAL WORDINGS:

poses per Tax Dec. Nos. 858391 and 09352

marked Cad-367, Jasaan
which should read as follows after supplying the
omissions:

poses per Tax Dec. Nos. 858391 and 09352

marked Exhs. E-3 and E-6, that Lot 3463, Cad-367,
Jasaan11

The RTC issued an Amended Judgment12 on 17

January 1994. However, only the error on page 2
was corrected and the error on page 4 remained.
Upon yet another motion of Resins, Inc., the RTC
issued another Amended Judgment on 16 March
1994 which corrected both errors. The OSG
received a copy of the Amended Judgment on 2
May 1994, and filed a notice of appeal on 12 May
1994. Resins, Inc. filed a second motion to order
the LRA to issue a decree of registration in its favor.

On 7 July 1999, the RTC issued an Order13 granting

Resins, Inc.s motion. The Order reads, thus:
Submitted before this court is the Second Motion to
Order the LRA to Issue a Decree of Registration, etc.
dated May 10, 1999 and filed on June 14, 1999 praying
that

1. The appeal filed by the [OSG] on May 12, 1994 or

more than one (1) year from receipt of the original
judgment, be ordered dismissed;

2. Another order be issued directing the LRA to issue a

decree of registration for the eight (8) lots enumerated in
par. 1 hereof, based on the Amended Judgment dated
March 16, 1994 and for other reliefs due under the
premises.

Despite notice to the Solicitor General[,] he or his

representative did not appear in the hearing of June 18,
1999, nor did he file an opposition to the motion.

The Court finds the motion meritorious. The motion is

granted. Hence, the [OSG]s appeal of May 12, 1999 is
dismissed. The Land Registration Authority (LRA) is
hereby directed to issue a decree of registration in favor
of [Resins, Inc.] for Lots 986, 1371, 1372, 1373, 1417,
3462, 3463, and 3465, CAD-367 of the Jasaan Cadastre
after the judgment dated March 17, 1993 became final
and executory.

SO ORDERED.

The Republic filed a Motion for Reconsideration14 of

the 7 July 1999 Order. The Republic alleged that
the OSG was never furnished a copy of the alleged
original decision. The Republic cited Resins, Inc.s
Motion to Dismiss Appeal,15 which stated [t]hat the
original judgment of this case was issued on March

19, 1993, copy of which was furnished to the Office

of the Solicitor General c/o the City Prosecutor who
was delegated to represent the former during the
proceedings. Therefore, the 17 March 1993
Judgment never acquired finality with respect to
the Republic.
Resins, Inc. filed an Opposition to the Motion for
Reconsideration16 on 19 August 1999. Resins, Inc.
stated that the OSG was furnished a copy of the 17
March 1993 decision. The OSG received the
decision on 6 April 1993, as certified by the RTC
Clerk of Court,17 and as evidenced by post office
return slips.18
On 28 May 2003, the RTC issued yet another
Order.19 Said Order reads, thus:
For resolution is the motion for reconsideration filed by
the oppositor Republic of the Philippines represented by
the Office of the Solicitor General of the order dismissing
the notice of appeal filed by the said oppositor alleging
that the Republic was never furnished copy of the
judgment dated March 17, 1993 and that an amended
order of the decision is entirely new which supersedes the
original decision.

The motion was vehemently opposed by the applicant

alleging that the Cagayan de Oro City Prosecutor received

copy of the said judgment on March 29, 1993 while the
Office of the Solicitor General, the Land Registration
Authority, and the Bureau of Lands received copy of the
judgment on April 6, 1993.

The records of the case shows [sic] that indeed these

offices received the copy of the judgment as mentioned
in the opposition per return slips attached to the records.
Since there is no appeal filed within 30 days from receipt
of the judgment, the judgment of this Court therefore has
already become final and executory.

Anent the issue that the amended judgment supersedes

the original judgment and as correctly pointed out by the
applicant, the amendment pertains to harmless clerical
errors in pages 2 and 4 of the original judgment but the
dispositive portion confirming applicants ownership over
the lots was not changed.

The Republic then filed a Petition for Certiorari and

Prohibition20 with prayer for temporary restraining
order and/or writ of preliminary injunction. The
Republic sought to nullify, set aside, and prevent
the implementation of the RTCs Orders dated 7
July 1999 and 28 May 2003; as well as to nullify
and set aside the Judgment dated 17 March 1993
and the Amended Judgment dated 17 January

1994. The Republic claimed that the entries in the

logbook of the OSGs Docket Division do not
indicate that the 17 March 1993 Judgment was
ever received by the OSG and actually transmitted
to the lawyers assigned to represent the Republic
in the present case.
The Ruling of the Court of Appeals
On 25 May 2006, the CA rendered its Decision21 and
denied the Republics petition. The CA saw no
grave abuse of discretion in the RTCs dismissal of
the Republics appeal, which appeal was based on
the OSGs alleged non-receipt of its copy of the
original Judgment.
The CA found that the records of the case show
that the OSG indeed received its copy of the
original Judgment on 6 April 1993 as the return slip
clearly indicated the date of service on the OSG.
The OSG did not file an appeal within the
reglementary period; hence, the RTC ruled that the
Judgment is already final and executory. The CA
also rejected the OSGs desire for examination of
entries in the OSGs logbook as well as the affidavit
of its bookbinder. The CA ruled that evaluation of
evidentiary matters is beyond the province of a
writ of certiorari. Moreover, even if the evidence

were considered, the same should still be rejected

because the OSG failed to show that the
bookbinder had authority to record and keep legal
custody of the logbook. Finally, the CA ruled that
the only issue in a petition for certiorari is lack or
excess or grave abuse of discretion. Thus, the
OSGs contention that the State cannot be put in
estoppel by the mistakes of its agents is misplaced.

The Issues

The Republic enumerated the following grounds to

support its Petition:
I. The Court of Appeals gravely erred in not holding that
the RTC of Misamis Oriental, Branch 20 acted with grave
abuse of discretion amounting to lack or excess of
jurisdiction when it dismissed [the Republics] notice of
appeal (in its Order dated July 7, 1999) and subsequently
denied [the Republics] motion for reconsideration of such
dismissal (in its Order dated May 28, 2003) because of
the clear showing that the OSG, as [the Republics]
statutory counsel, was not actually notified of and/or had
not received a copy of the original Judgment dated March
17, 2003 in Land Registration Case No. N-91-912.

II. The Court of Appeals has gravely erred in not holding

that the RTC of Misamis Oriental, Branch 20 acted with
grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the July 7, 1999 and May 28, 2003
Orders which unduly deprived petitioner of its opportunity
to interpose an appeal from the original Judgment dated
March 17, 1993 and/or Amended Judgment dated January
17, 1994 in the subject land registration case which found
respondent-applicant Resins Incorporated to have
registrable title to all the eight (8) lots applied for despite
lack of clear factual and legal basis to support the
conclusion that applicant and his predecessor-in-interest
had openly, continuosly [sic], adversely and
uninterruptedly been in possession of the lots as owned
for about 40 years prior to filing of the application.22

The Courts Ruling

The petition is meritorious. We rule that Resins, Inc.
failed to prove that the Republic, via the OSG,
indeed received the 17 March 1993 Judgment.
At the time of the promulgation of the trial courts
judgment, the applicable rules were those of the

Revised Rules of Court. Pertinent portions of these

sections are quoted below:
Sec. 5. Service by registered or ordinary mail. If service
is not made personally, service by registered mail shall be
required if registry service exists in the locality; otherwise
service may be made by depositing the copy in the post
office, in a sealed envelope, plainly addressed to the
party or his attorney at his office, if known, otherwise at
his residence, if known, with postage fully prepaid, and
with instructions to the postmaster to return the mail to
the sender after ten (10) days if undelivered.23

Sec. 7. Service of judgments, final orders or resolutions.

Judgments, final orders or resolutions shall be served
either personally or registered mail. x x x24

Sec. 8. Completeness of service. x x x Service by

registered mail is complete upon actual receipt by the
addressee, but if he fails to claim his mail from the post
office within five (5) days from the date of first notice of
the postmaster, service shall take effect at the expiration
of such time.25

Sec. 10. Proof of service. x x x If the service is by

ordinary mail, proof thereof shall consist of an affidavit of
the person mailing of facts showing compliance with
section 5 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 letter unclaimed
together with the certified or sworn copy of the notice
given by the postmaster to the addressee.26

When service of notice is an issue, the rule is that

the person alleging that the notice was served
must prove the fact of service. The burden of
proving notice rests upon the party asserting its
existence.27 In civil cases, service made through
registered mail is proved by the registry receipt
issued by the mailing office and an affidavit of the
person mailing of facts showing compliance with
Section 13, Rule 13 of the 1997 Rules on Civil
Procedure.28
The OSG insists that it did not actually receive a
copy of the 17 March 1993 Judgment. The OSG
received a certified copy of the 17 March 1993
Judgment only after its 24 June 2003 written
request to the Assistant City Prosecutor of Cagayan
de Oro. The OSG presented a certified photocopy of
the page of the OSGs Docket Division Log Book
listing the orders, pleadings, and other papers
received by the OSG pertaining to the present
case. The last document on the case received by
the OSG before the receipt of the Amended
Judgment on 2 May 1994 was an Order dated 26
December 1992 and received on 13 January 1993.

There was no record of the Judgment dated 17

March 1993. Because of this non-receipt, the
Republic was deprived of the opportunity to appeal
or to ask for reconsideration of the judgment. The
OSG filed a notice of appeal on 12 May 1994, only
after its receipt of the Amended Judgment.
Resins, Inc., on the other hand, asserts that the
certification of the RTC Clerk of Court and
photocopies of the return slips from the post office
are sufficient to prove that the OSG indeed
received the 17 March 1993 Judgment.
Resins, Inc.s argument must fail.
OSGs denial of receipt of the 17 March 1993
Judgment required Resins, Inc. to show proof that
the Judgment was sent through registered mail
and that it was received by the Republic. While the
certification from the RTC Clerk of Court and
photocopies of the return slips prove that the
Republic was served the judgment, it does not
follow that the Republic, via the OSG, actually
received the judgment. Receipts for registered
letters and return receipts do not prove
themselves, they must be properly authenticated
in order to serve as proof of receipt of the letters.29
Resins, Inc. also did not show a certification from

the postmaster that notice was duly issued and

delivered to the OSG such that service by
registered mail may be deemed completed. It
cannot be stressed enough that it is the registry
receipt issued by the mailing office and the
affidavit of the person mailing, which proves
service made through registered mail.30 Absent
one or the other, or worse both, there is no proof of
service.31
Mere certification of the RTC Clerk of Court is
insufficient because the Clerk of Court may not be
the person who did the mailing. The certification in
this case is also not under oath. There must be an
affidavit of the person who actually did the mailing.
In the present case, the certification of the Clerk of
Court states:
CERTIFICATION

This certifies that the original carbon copy of the

Judgment of the above-entitled case appearing on pages
484-488 dated March 17, 1993 was received by the Office
of the Solicitor-General on April 6, 1993 as per return slip.
A copy of which is attached herewith.

Posted on this 13th day of August, 1999 in the city of

Cagayan de Oro.

TAUMATURGO U. MACABINLAR
Clerk of Court V32

It is clear that the certification does not state that

the Clerk of Court did the mailing. Mere
photocopies of the return slips are also insufficient.
The original copies of the registry receipt or, in lieu
thereof, the unclaimed notice and a certification
from the postmaster of the issuance of notice,
should be presented. Indeed, we declared
inDelgado v. Hon. P.C. Ceniza, et al. that:

We find that the service of the judgment rendered in the

case suffers from two defects, namely, there is no
affidavit of the clerk of court, the person mailing, and
there is no registry return card, or a certified or sworn
copy of the notice given by the postmaster to the
addressee.33 (Emphasis supplied)

While we concede that there may be a

presumption of regularity, in the ordinary course of
events, that the RTC Clerk of Court sent the 17
March 1993 Judgment to the OSG, such
presumption should fail when the OSG itself denies
receipt. When the service of the judgment is
questioned, such as in the present case, there is a
need to present both the registry receipt
issued by the mailing office and the affidavit
of the person mailing. Since the OSG presented
proof of non-receipt, it became incumbent upon
Resins, Inc. to prove receipt, which Resins, Inc.
failed to do.

WHEREFORE, we GRANT the petition. The

Decision of the Court of Appeals in CA-G.R. SP No.
78516 promulgated on 25 May 2006 is REVERSED
and SET ASIDE. The Regional Trial Court of
Misamis Oriental, Branch 20, Cagayan de Oro City
is directed to hear the appeal of the Republic of the
Philippines in Land Registration Case No. N-91-012,
LRA Record No. N-62407.
SO ORDERED.
ANTONIO T. CARPIO

Associate Justice
WE CONCUR:

DIOSDADO M. PERALTA
Associate Justice

ROBERTO A. ABAD JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

JOSE C. MENDOZA
Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision
had been reached in consultation before the case
was assigned to the writer of the opinion of the
Courts Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson

CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, and the Division Chairpersons
Attestation, I certify that the conclusions in the
above Decision had been reached in consultation
before the case was assigned to the writer of the
opinion of the Courts Division.

RENATO C. CORONA

Chief Justice

* Designated additional member per Raffle dated 21 June 2010.

1 Under Rule 45 of the 1997 Rules of Civil Procedure.
2 Rollo, pp. 82-99. Penned by Associate Justice Myrna Dimaranan Vidal,
with Associate Justices Romulo V. Borja and Ramon R. Garcia,
concurring.
3 Id. at 124-128. Penned by Judge Alejandro M. Velez.
4 Id. at 129-133. Penned by Judge Alejandro M. Velez.
5 Id. at 143. Penned by Judge Anthony E. Santos.
6 Id. at 157-158. Penned by Judge Gregorio D. Pantanosas, Jr.
7 Id. at 124-128.
8 Id. at 83-86.
9 Id. at 124-128.
10 Id. at 128.
11 Id. at 87.
12 Id. at 129-133.
13 Id. at 143.

14 Id. at 144-149.
15 Id. at 137-138.
16 Id. at 150.
17 Id. at 151.
18 Id. at 152.
19 Id. at 157-158.
20 Under Rule 65 of the 1997 Rules of Civil Procedure.
21 Rollo, pp. 82-99.
22 Id. at 36-37.
23 Now Section 7, Rule 13 of the 1997 Rules of Civil Procedure.
24 Now Section 9, Rule 13 of the 1997 Rules of Civil Procedure.
25 Now Section 10, Rule 13 of the 1997 Rules of Civil Procedure.
26 Now Section 13, Rule 13 of the 1997 Rules of Civil Procedure.
27 Government of the Philippines v. Aballe, G.R. No. 147212, 24 March
2006, 485 SCRA 308, 317.
28 Petition for Habeas Corpus of Benjamin Vergara v. Judge Gedorio,
Jr., 450 Phil. 623, 634 (2003). See also note 26.
29 Ting v. Court of Appeals, 398 Phil. 481, 493 (2000) citing Central
Trust Co. v. City of Des Moines, 218 NW 580 (1928).
30 Supra note 27, at 318. Emphasis in the original.
31 Cruz v. Court of Appeals, 436 Phil. 641, 652 (2002).
32 Rollo, p. 151.

33 101 Phil. 740, 743 (1957).

Republic of the Philippines

Supreme Court
Manila
SECOND DIVISION
GCP-MANNY TRANSPORT
141484
SERVICES, INC.,
Petitioner,
Present:

G.R. NO.

PUNO, Chairman,*
AUSTRIA-MARTINEZ,
CALLEJO, SR.,
- versus TINGA, and
CHICO-NAZARIO,* * JJ.
HON. ABRAHAM Y. PRINCIPE,
Presiding Judge, Regional Trial Court,
Branch 2, Tuguegarao, Cagayan,
CAGAYAN PROVINCIAL SHERIFF
or his deputies, and NELSON
Promulgated:
RECOLIZADO,
Respondents.
November 11,
2005
x----------------------------------- - - - - - - - - - - - - - - -x

DECISION

AUSTRIA-MARTINEZ, J.:

GCP-Manny Transport Services, Inc. is now

before this Court on a petition for review on
certiorari seeking the reversal of the Decision[1]
of the Court of Appeals (CA) in CA-G.R. SP. No.
43441 promulgated on May 26, 1999 and the
Resolution[2] dated December 29, 1999.
The antecedent facts, as summarized by
the CA, are as follows:

On April 18, 1990, private respondent

filed the herein complaint for damages
docketed as Civil Case No. 4142 for physical
injuries sustained by him as a passenger of
petitioners bus.
On November 2, 1995, respondent
court[3] rendered a decision in favor of the
private respondent ordering the petitioner to
pay the former the amount of P58,207.35 as
actual
and
compensatory
damages;
P150,000.00 as moral damages; P10,000.00
as exemplary damages and P10,000.00 as
attorneys fees, and costs. Copy of the

decision sent to petitioner was returned for

the reason that it had moved (residence),
while copy sent to Atty. Arnold M. Aquino,
then petitioners counsel, was returned
unserved being unclaimed.
Petitioner
states that a copy of the decision was
personally delivered by the Civil Docket Clerk
of the trial court on Atty. Aquino who had
refused to receive the same saying he was no
longer counsel for the petitioner, although no
notice of withdrawal as counsel was filed by
him in court.
On April 11, 1996, private respondent
filed a motion for execution of the judgment,
copy furnished to Atty. Arnold M. Aquino and
petitioner which the court granted on October
9, 1996. The assailed writ of execution was
correspondingly issued, which petitioner
received on October 30, 1996.
On November 5, 1996, Atty. Jose de
Luna entered his appearance as new counsel
for
the
petitioner
with
motion
for
reconsideration of the order dated October 9,
1996 granting the motion for execution or the
quashal of the writ of execution on the ground
that petitioner had not been duly notified of
the decision.
On November 9, 1996, petitioner
received a Notice of Demand for Payment
from the deputies of the Ex-officio Sheriff of
the RTC of Cagayan attaching thereto copies

of the writ of execution and the decision. On

November 14, 1996, petitioner filed a Notice
of Appeal. Two(2) months later, on January
23, 1997, the respondent court issued the
assailed resolution denying
petitioners
motion for reconsideration or to quash writ of
execution.[4] (citations omitted)

Petitioner went to the CA on a petition for

certiorari

claiming

respondent

Judge

that

the

of

denial

its

of

motion

the
for

reconsideration was tainted with grave abuse of

discretion since he was not duly notified of the
decision and there is no legal and factual basis
for the issuance of the writ of execution.[5] The
appellate

abuse

of

discretion and dismissed the petition.[6]

It

likewise

court

denied

found

no

such

petitioners

motion

for

reconsideration.[7]
Hence, the present petition for review on

certiorari alleging that:

I
THE COURT OF APPEALS COMMITED A GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK
OF JURISDICTION OR IN EXCESS OF IT IN
FINDING THAT THE UNJUSTIFIABLE REFUSAL
OF PETITIONERS COUNSEL ON RECORD TO
RECEIVE IN OPEN COURT A COPY OF THE
SUBJECT DECISION IS ONLY A MERE
NEGLIGENCE OF COUNSEL AND THEREFORE,
BINDS PETITIONER, HENCE, THE DECISION
HAD BECOME FINAL AND EXECUTORY.
II
THE COURT OF APPEALS COMMITTED GRAVE
ABUSE OF DISCRETION IN AFFIRMING THE
DECISION OF RESPONDENT JUDGE, BY CITING
JURISPRUDENCE
ON
NEGLIGENCE
OF
COUNSEL BINDS HIS CLIENT WHICH IS NOT
APPLICABLE IN THE INSTANT CASE BECAUSE
THEY HAVE DIFFERENT FACTS.[8]

Petitioner argues that: when a copy of the

decision which the court sent to Atty. Aquino was
returned to sender, respondent Judge resorted in

causing the service of the decision to said

counsel in open court, as petitioners counsel on
record, when said lawyer appeared in the sala of
respondent Judge for another case; petitioner
should be deemed as having no notice of the
trial court decision since its counsel, who had
not withdrawn as such, refused to receive a copy
of the same; such act of its counsel constitutes
gross negligence which does not bind petitioner;
there was also no valid service to Atty. Aquino
because when he refused to receive a copy of
the decision, what the civil docket clerk of the
trial court should have done under the premises
was to resort to substituted service; since there
was no notice to petitioner regarding the trial
court decision, the issuance of the writ of
execution and the denial of petitioners notice of

appeal by respondent Judge are null and void;

and the case of Peoples Homesite and Housing
Corp. vs. Tiongco[9] held that when the lawyer
failed to notify his client about the receipt of the
decision, such lawyer is irresponsible and notice
to him is not notice to client, such as in the case
at bar.[10]
Petitioner prays that the decision and the
resolution promulgated by the CA be reversed;
that an order be issued nullifying the writ of
execution issued by respondent Judge; and that
the notice of appeal of petitioner be granted as
it has a very meritorious defense based on
fortuitous event.[11]
Respondent in his Comment contends
that: since Atty. Aquino is the counsel of

petitioner from the trial up to its termination and

there is nothing in the record to show that he
withdrew as counsel of petitioner, the copy of
the decision mailed to him by registered mail
although returned unserved is sufficient to serve
as notice to him and to his client following Sec. 5
of Rule 13 of the Rules of Court; it was the duty
of petitioner to notify the court that Atty. Aquino
was

no

longer

its

lawyer;

petitioner

was

negligent in hiring a new counsel more than a

year from July 1995 when Atty. Aquino was no
longer its lawyer; the implication is that Atty.
Aquino was still its counsel when the decision
was rendered and when a copy of the decision
was sent to him by registered mail since it is
elementary that if a lawyer is going to withdraw
as counsel for his client, he should file a motion

to withdraw as such with the conformity of the

client; in this case, Atty. Aquino did not file any
motion to withdraw as counsel for the petitioner
thus he remained to be counsel of record of
petitioner

especially

since

it

was

only

on

October 26, 1996 when the services of Atty. Jose

de Luna was engaged by petitioner; and the writ
of

execution

issued

is

valid

and

proper

considering that the decision of the court has

already become final and executory.[12]
Before going to the merits, this Court
reiterates the distinction between petition for
review on certiorari under Rule 45 and petition
for certiorari under Rule 65.

It should be

recalled that a petition under Rule 45 brings up

for review errors of judgment while a petition

under Rule 65 concerns errors of jurisdiction or

grave abuse of discretion amounting to lack or
excess of jurisdiction. Grave abuse of discretion
is not an allowable ground under Rule 45.
However, a petition for review on certiorari
under

Rule 45 may be considered as a petition

for certiorari under Rule 65 where it is alleged

that the respondents abused their discretion in
their questioned actions.[13] Such is the case at
bar.
It is petitioners position that the CA
committed grave abuse of discretion in finding
that the unjustifiable refusal of its counsel on
record to receive in open court a copy of the
subject decision is only mere negligence of
counsel which binds it. It then contends that the

writ of execution should be quashed because

the decision of the trial court had not become
final and executory due to non-service of the
decision upon its counsel.
The Court does not agree.
Jurisprudence

is

replete

with

pronouncements that clients are bound by the

actions of their counsel in the conduct of their
case.[14] If it were otherwise, and a lawyers
mistake or negligence was admitted as a reason
for the opening of a case, there would be no end
to litigation so long as counsel had not been
sufficiently diligent or experienced or learned.
[15]
The only exception to the general rule is

when the counsels actuations are gross or

palpable, resulting in serious injustice to client,
that courts should accord relief to the party.[16]
Indeed, if the error or negligence of the counsel
did not result in the deprivation of due process
to

the

client,

nullification

of

the

decision

grounded on grave abuse of discretion is not

warranted.[17]
In this case, while Atty. Aquino, counsel of
petitioner,

was

far

from

protecting

the

interest

being
of

his

vigilant
client,

in
his

infractions cannot be said to have deprived

petitioner of due process that would justify
deviation from the general rule that clients are
bound by the actions of their counsel.
As may be gleaned from the records,

petitioner was able to actively participate in the

proceedings a quo. It was duly represented by
counsel during the trial. While it may have lost
its right to appeal, it was not denied its day in
court. As enunciated by this Court, the right to
appeal is not a natural right or a part of due
process but only a statutory privilege and may
be

exercised

only

in

the

manner

and

in

accordance with the provisions of law. [18] As

long as a party is given the opportunity to
defend its interests in due course, it would have
no reason to complain, for it is the opportunity
to be heard that makes up the essence of due
process.[19]
The Court has also held that when
petitioner is at fault or not entirely blameless,

there is no reason to overturn well-settled

jurisprudence or to interpret the rules liberally in
its favor.[20] Where petitioner failed to act with
prudence and diligence, its plea that it was not
accorded the right to due process cannot elicit
this Courts approval or even sympathy.[21] It is
petitioners duty, as a client, to be in touch with
his counsel so as to be constantly posted about
the case.[22] It is mandated to inquire from its
counsel about the status and progress of the
case from time to time and cannot expect that
all it has to do is sit back, relax and await the
outcome

of

the

case.[23]

It

is

also

its

responsibility, together with its counsel, to

devise a system for the receipt of mail intended
for them.[24]
Petitioner was wanting in all these areas.

Not only did it fail to regularly check on the

status of the case, it also failed to ensure that it
could be notified of the decision as soon as it
was promulgated. Petitioner did not inform the
court that it has severed its relationship with
Atty. Aquino, its counsel of record.[25] Thus,
insofar as the trial court was concerned, Atty.
Aquino was still its counsel. Neither did it hire a
new lawyer soon after Atty. Aquino allegedly
ceased to be its counsel. Atty. Jose de Luna, its
subsequent lawyer, stated that his services were
engaged by petitioner only on October 26, 1996
or a year after the decision was rendered by the
trial court, while Atty. Aquino is supposed to
have resigned as petitioners counsel in July of
1995 or three months before the questioned
decision

was

promulgated.[26]

Insofar

as

petitioner is concerned, it knew that it did not

have any counsel when the decision of the trial
court was due for promulgation yet it did not
engage the services of a new one to safeguard
its interests.
Petitioner also claims that it had no valid
notice of the trial court decision therefore the
writ of execution subsequently issued by the
respondent Judge is null and void; and claims
that the trial court should have resorted to
substituted service when its counsel on record
refused to receive a copy of the decision.
Such claims have no merit.
The fact that Atty. Aquino refused to
receive

copy

of

the

decision

and

no

substituted service was effected does not erase

the fact that a copy of the trial court decision

had earlier been sent by registered mail to Atty.
Aquino which was returned for the reason that
he has moved.[27] This is sufficient service of
the decision on petitioner since service upon
counsel of record at his given address is service
to petitioner.[28] As explained in Macondray &
Co., Inc. vs. Provident Insurance Corp.:[29]
If counsel moves to another address
without informing the court of that change,
such omission or neglect is inexcusable and
will not stay the finality of the decision. The
court cannot be expected to take judicial
notice of the new address of a lawyer who
has moved or to ascertain on its own whether
or not the counsel of record has been
changed and who the new counsel could
possibly be or where he probably resides or
holds office.[30]

The

rule

is

that

when

party

is

represented by counsel in an action in court,

notices of all kinds including motions, pleadings

and orders must be served on the counsel. And

notice to such counsel is notice to the client.[31]
Notice sent to counsel of record is binding upon
the client and the neglect or failure of counsel to
inform him of an adverse judgment resulting in
the loss of his right to appeal is not a ground for
setting aside a judgment, valid and regular on
its face.[32]
While the rule admits of exceptions, in
order to prevent a miscarriage of justice,[33] no
such circumstance is here present as petitioner
was duly accorded due process.
This Court has also held that in cases
where service was made on the counsel of
record at his given address, notice sent to
petitioner itself is not even necessary.[34] Even

then, in the present case, the trial court had

sent a copy of the decision to petitioners known
address which was returned however for the
reason that it has moved.[35]
Petitioner also claims that the ruling of the
Court in Peoples Homesite & Housing Corp. vs.
Tiongco[36] should be applied in the present
case.
The Court disagrees.

The differences in

Peoples Homesite with the case at bar are

apparent.
In Peoples Homesite, the counsel failed to
inform the petitioners of the scheduled hearing
and the case was heard in their absence. The
counsel also did not inform the petitioners that
he had received a copy of the decision neither

did he file a motion for reconsideration or a

petition to set aside judgment to protect the
interests of his clients. As soon as petitioners
learned of the decision they contacted their
counsel and failing to do so, hired the services of
a new one. When asked to explain, the counsel
merely

said

petitioners

that

he

because

did

the

not

case

inform

the

escaped

his

attention. Because of these actions, the Court

found that there was something fishy and
suspicious. Indeed, there was nothing which
could

have

prevented

the petitioners from

attending the trial of the case themselves or

moved for a reconsideration of the decision or
took the necessary appeal from the judgment if
only their counsel had informed them of the
courts processes.[37]

In this case, petitioner was able to actively

defend its case in court. It also knew that Atty.
Aquino was no longer its counsel months before
the decision was rendered, unlike in Peoples
Homesite, yet it did not take steps to hire a new
one to protect its interests.
The trial court was therefore correct when it
denied petitioners motion for reconsideration of
the order issuing the writ of execution. As ably
discussed by respondent Judge in his resolution:
The sole issue to be resolved in the
case at bar is whether or not there was a
valid service of the courts decision to
defendants herein and their former counsel.
Defendants main theory is that there
was no valid service of the decision to them
by registered mail, and that, neither was
there a valid service of the decision to their
former counsel, Atty. Arnold Aquino, who
refused to receive it when the Civil Docket
Clerk of this court personally handed a copy

of the decision to him.

Section 7, Rule 13 of the Rules of Court
provides as follows:
Section 7 Service of Final orders of
Judgments.
Final orders of Judgments shall be
served either personally or by registered mail
xxx
For the Rule to apply, service must have
been made on the counsel de parte (FOJAS VS.
NAVARRO, L-26365, April 30, 1970) and if it
was sent to his address on record and he fails
to receive it for causes imputable to him it is
not necessary to effect further service upon
the party he represent (MAGNO, ET AL VS. C.A.,
et al. G.R. No. 58781, July 31, 1987).
As borne by the records itself, a copy of
this courts decision was sent thru registered
mail on December 6, 1995 to Atty. Arnold
Aquino, who was at that time defendants
counsel of record, at his given address on
record but the same was returned with the
annotation on the envelope that said counsel
had moved. A separate copy of the
decision was later sent thru registered mail to
the defendant GCP Manny Transport Service,
Inc. at its given address on record but was
also returned to the Court with the same
annotation that said defendant had moved.

It is not disputed that the address on record

of Atty. Arnold Aquino and GCP Manny
Transport Service Inc. is 1310 Espaa Corner
Galicia St., Sampaloc, Manila. It was there
where copies of the decision were sent.
In the case of Magno, et al. vs. C.A., et
al., (G.R. No. 58781, July 31, 1978 [sic]) it was
held that:
(But) where a copy of the decision was
sent to counsel at his address of record but
the same was not received because he
moved to another address without informing
the court thereof, such omission or neglect
will not stay the finality of the decision.
Neither
Atty.
Arnold
Aquino
or
defendant GCP Manny Transport Service, Inc.
informed the court of their change of
address. Naturally, copies of the decision in
this case were sent at their address of
record. It is not incumbent upon the court to
determine the new address of party-litigants.
On the contrary, it is the duty of the parties to
inform the court of such change address.
Moreover, notices of the court processes are
ordinarily taken cared of by clerks who are
naturally guided by addresses of record. To
require the court and its personnel before
sending out the notices to be continuously
checking the records and the various
addresses from which a counsel may have
filed his pleadings and sending them to such

addresses instead of his address of record is

to show (sic) confusion and add an intolerable
burden which is not permitted by the Rules of
Court (INANA VS. GARCIA 25 SCRA 801, see
Rule 7, Sec. 5, Rule 13, Sec.5).
Notwithstanding separate service of
copy of decision to herein defendant GCP
Manny Transport Inc., and its counsel de parte
thru registered mail, the Court, likewise,
available of personal service of decision
pursuant to Section 7 of said Rule 13.
Be it noted that the Civil Docket Clerk
personally handed a copy of the decision to
Atty. Arnold Aquino who was in court but who
refused to receive it alleging that he is no
longer the counsel for the defendant.
However, at the time of such service, Atty.
Aquino remained to be defendants counsel of
record since he did not formally withdraw as
counsel for the GCP Manny Transport Inc. It
has been held time and again that personal
service of decision cannot be avoided by
counsels declining to accept it and service is
deemed complete regardlessof such refusal
to accept. And notice to counsel operates as
notice to clients.
It is now too late for herein defendants
to advance the theory that they have not
received a copy of the decision in this case,
especially if the records thereof, would show
otherwise. The Court was not amiss in seeing

to it that its final orders and judgment were

duly served or furnished the party-litigants
and their respective counsels and if they
refuse to receive the same, they must suffer
the consequences thereof. The decision
rendered by this Court has already attained
finality, hence, may no longer be set aside
not even reconsidered without militating
against the provisions of our procedural laws.
[38]

As a final note, let it be emphasized that

before a counsel of record may be considered
relieved of his responsibility as such counsel on
account of withdrawal, it is necessary that
Section 26, Rule 138 of the Rules of Court, to
wit:
Section 26 Change of Attorneys An
attorney may retire at anytime from an action
or special proceeding, by the written consent
of his client filed in court. He may also retire
at anytime from an action or special
proceeding, without the consent of his 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 the

written notice of the change shall be given to
the adverse party.

should be observed. Unless said procedure is

complied with, the counsel of record is regarded
as the counsel who should be served with copies
of the judgments, orders and pleadings and who
should be held responsible for the case.[39]
Indeed, a lawyers withdrawal as counsel must
be made in a formal petition filed in the case,
without which, notice of judgment rendered in
the case served on the counsel of record, is, for
all legal purposes, notice to the client, the date
of receipt of which is considered the starting
point from which the period of appeal prescribed
by law shall begin to run.[40] Petitioner having
failed to appeal in due time, the trial court did
not

commit

any

error

or

grave

abuse

of

discretion in granting the motion for execution.

WHEREFORE,

the

petition

is

hereby

DISMISSED for lack of merit.

Costs against petitioner.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Associate Justice

ROMEO J. CALLEJO, SR.

DANTE O. TINGA
Associate
Justice
Associate Justice

(On Leave)
MINITA V. CHICO-NAZARIO
Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, it is hereby certified that the
conclusions in the above Decision were reached
in consultation before the case was assigned to
the writer of the opinion of the Courts Division.

REYNATO S. PUNO
Acting Chief Justice

*
**
[1]
\

[2]
[3]
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13]
[14]

[15]

Acting Chief Justice

On Leave
Penned by Associate Justice Portia Alio-Hormachuelos and
concurred in by Associate Justices Buenaventura J. Guerrero and
Eloy R. Bello, Jr., Rollo, pp. 73-77.
Rollo, p. 79.
Regional Trial Court, Branch 2, Tuguegarao, Cagayan.
Rollo, pp. 73-74.
Id., p. 74.
Id., p. 77.
Id., p. 79.
Id., p. 30.
G.R. No. L-18891, November 28, 1964, 12 SCRA 471.
Rollo, pp. 30-32.
Id., p. 32.
Rollo, pp. 92-96.
People vs. Court of Appeals, G.R. No. 132396,
September 23, 2002, 389 SCRA 461, 475.
Sublay vs. NLRC, G.R. No. 130104, January 31, 2000, 324
SCRA 188, 194; Bernardo vs. Court of Appeals, G.R. No. 106153,
July 14, 1997, 275 SCRA 413, 428; Heirs of Elias Lorilla vs. Court
of Appeals, G.R. No. 118655, April 12, 2000, 330 SCRA 429,
436.
Sublay vs. NLRC, supra, note 14, pp. 194-195.

[16]
[17]
[18]

Bernardo vs. Court of Appeals, supra, note 14, p. 428.

Ibid.
Mercury Drug Corp. vs. CA, G.R. No. 138571, July 13, 2000,
335 SCRA, 567, 579.
[19]
Philhouse Development Corp. vs. Consolidated Orix
Leasing and Finance Corp., G.R. No. 135287, April 4, 2001, 356
SCRA 281, 286.
[20]
Macondray & Co., Inc. vs. Provident Insurance Corp., G.R.
No. 154305, December 9, 2004.
[21]
Bernardo vs. Court of Appeals, supra, note 14, p. 430.
[22]
Philhouse Development Corp. vs. Consolidated Orix
Leasing & Finance Corp., supra, note 19, p. 285.
[23]
Balgami, et al. vs. Court of Appeals, G.R. No. 131287,
December 9, 2004.
[24]
NIA Consult, Inc. vs. NLRC, G.R. No. 108278, January 2,
1997, 266 SCRA 17, 22-23.
[25]
See, Lee vs. Romillo, Jr., No. L-60937, May 28, 1988, 161
SCRA 589, 600.
[26]
Records, pp. 235-237.
[27]
Records, p. 224 b.
[28]
Supra, note 20.
[29]
Ibid.
[30]
Ibid.
[31]
Supra, note 23.
[32]
Mercury Drug Corp. vs. Court of Appeals, supra, note 18, p.
577.
[33]
GSIS vs. Bengson Commerciol Buildings, G.R. No. 137448,
January 31, 2002, 375 SCRA 431, 445.
[34]
Ibid.
[35]
Records, p. 224 a.
[36]
Supra, note 9.
[37]
Id., pp. 473-476.
[38]
Rollo, pp. 68-70.
[39]
Aquino vs. Court of Appeals, G.R. No. 109493, July 2, 1999,
309 SCRA 578, 584.
[40]
Cubar vs. Mendoza, No. L-55035, February 23, 1983, 120
SCRA 768, 772-773.

G.R. no. 169970

January 20, 2009

PROTACIO VICENTE AND DOMINGA VICENTE, represented

by Rondolf Vicente, Petitioners, vs.DELIA SOLEDAD AVERA
and RONBERTO VALINO, Sheriff IV, Regional Trial Court,
Branch 70, Pasig City,Respondents.
DECISION
PUNO, C.J.:
This Petition for Review on Certiorari seeks to set aside the
Decision1 and Resolution2 of the Court of Appeals (CA), dated June
16, 2005 and October 4, 2005 respectively, in CA-G.R. CV No.
79327, which reversed the Decision3 of the Regional Trial Court
(RTC), Branch 208, Mandaluyong City, dated March 30, 2003.
Jovencio Rebuquiao was the registered owner of the property in
dispute, then covered by Transfer Certificate of Title (TCT) No.
34351.4 On October 1, 1987, Rebuquiao executed a Deed of
Absolute Sale in favor of petitioners, spouses Protacio Vicente and
Dominga Vicente, over the property in dispute. 5 Respondent Delia
Soledad Avera alleges that on October 9, 1987, Jose Rebuquiao,
pursuant to a Special Power of Attorney granted to him by
Jovencio Rebuquiao, executed a Deed of Absolute Sale with
Assumption of Mortgage in favor of Roberto Domingo, Averas
spouse at the time, and herself.6
On May 29, 1991, Avera filed a Petition for Declaration of Nullity of

Marriage before the RTC, Branch 70, Pasig City, entitled "Delia
Soledad Domingo, etc. v. Roberto Domingo" and docketed as JDRC
Case No. 1989-J (JDRC case). 7In this case, Avera asserted
exclusive ownership over the property in dispute. 8 On January 23,
1992, a notice of lis pendens was inscribed on TCT No. 34351,
pertaining to the JDRC case pending at the time. 9
Since 1997, petitioners possessed the property in dispute. 10 On
July 22, 1998, TCT No. 34351 was cancelled, and in lieu thereof,
the Registry of Deeds issued petitioners TCT No. 14216 for the
property in dispute, on the basis of the deed of sale executed on
October 1, 1987.11 The notice of lis pendens was carried over to
TCT No. 14216.12
On November 28, 1994, the RTC, Branch 70, Pasig City, rendered
a Decision in the JDRC case, declaring the marriage of Avera and
Domingo void and ordering the property acquired during their
cohabitation to be put in the custody of Avera, including the
property in dispute.13 After the decision in the JDRC case became
final and executory, the RTC, Branch 70, Pasig City, issued a Writ
of Execution.14 On June 13, 2001, the same trial court issued an
Alias Writ of Execution, which reads:
Movant declared in her motion that the said property is now
registered in the name of another person, namely, Protacio
Vicente, under TCT No. 14216 of the Register of Deeds of
Mandaluyong City. It appearing, however, that the transfer was
made notwithstanding the annotation thereon of the notice of lis
pendens that the same property is the subject of the instant case,
it can still be the subject of a writ of execution to satisfy the
judgment in favor of herein petitioner.
WHEREFORE, let an alias writ of execution be issued over Transfer
Certificate of Title No. 34351, now covered by TCT No. 14216 of
the Register of Deeds of Mandaluyong City.
1avvphil.zw+

SO ORDERED.15
Pursuant to the Alias Writ of Execution, respondent Ronberto
Valino, in his capacity as Sheriff IV of the RTC, Branch 70, Pasig

City, served a Notice to Vacate dated August 15, 2001, on

petitioners.16 On August 17, 2001, petitioners filed an Affidavit of
Third Party Claim before the RTC, Branch 70, Pasig City. 17
On August 22, 2001, petitioners filed a Complaint for Injunction
with Prayer for a Temporary Restraining Order (TRO) before the
RTC, Branch 208, Mandaluyong City, to enjoin Sheriff Valino from
implementing the alias writ of execution. 18 On September 4, 2001,
the trial court issued a TRO19 and, on May 29, 2002, a Writ of
Preliminary Injunction, enjoining respondents from enforcing the
notice to vacate.20 On March 30, 2003, it rendered a decision, the
dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered making the writ of
preliminary injunction PERMANENT.
Defendants counterclaims are hereby dismissed for lack of merit.
SO ORDERED.21
It held that petitioners were entitled to permanent injunction
considering the following: (1) it is undisputed that petitioners are
the registered owners of the subject property, which certificate of
title confers upon them conclusive ownership of the property; and
(2) the writ of execution issued in the JDRC case could only be
issued against a party to the action, and thus not to the
petitioners.22
On appeal, the CA reversed and set aside the decision of the RTC,
Branch 208, Mandaluyong City.23 The CA held that petitioners are
bound by the outcome of the JDRC case, because the annotation
of the notice of lis pendens(January 23, 1992) was ahead of
petitioners registration of the deed of sale executed on October
1, 1987 (July 22, 1998).24 Petitioners filed a Motion for
Reconsideration, which the CA denied.25
Petitioners raise the following issues before this Court:
I
The CA erred in ordering the dismissal of the complaint for

injunction despite the fact that the Petitioners are the registered
owners of the property and as such cannot be evicted out
therefrom unless:
A. the sale from which they based their acquisition is declared
void.
B. the title issued in their names based on the Deed of Sale is
likewise declared void.
II
The CA erred in dismissing the complaint because in so doing, it
made an implied recognition that a real property titled under the
torrens system may be attacked collaterally in contravention of
law and established jurisprudence[.]
III
The CA erred in concluding that the Petitioners are bound by the
lis pendens it being clear that the property was acquired long
before the lis pendens was annotated. Petitioners (sic) became
owners of the property on October 1, 1987 and not on July 20,
1998 when their ownership was merely confirmed by the title
issued by the Office of the Register of Deeds.
Petitioners maintain that as the registered owners and actual
possessors of the property in dispute, they are entitled to a writ of
injunction that will prevent the implementation of the writ of
execution corresponding to the JDRC case.
Respondents assert that petitioners are not entitled to the writ of
injunction, because the petitioners are subject to the outcome of
the JDRC case and thus the implementation of the writ of
execution due to the notice of lis pendensannotated on their TCT.
They further allege: (1) that there was no sale by Rebuquiao in
favor of petitioners on October 1, 1987; and (2) if there was a
sale, the same happened in 1997, the year petitioners registered
the deed of sale executed in their favor. 26
The core issue in the case at bar is whether injunction lies in favor

of the petitioners to prevent the respondents from interfering in

the exercise of their rights over the property in dispute.
We find merit in the petition.
Injunction, as a preservative remedy, aims to protect substantive
rights and interests.27 To be entitled to a writ of injunction, the
complainant must establish the following requisites: (1) there
must be a right in esse or the existence of a right to be protected;
and (2) the act against which injunction is to be directed is a
violation of such right. 28 The grant of the writ is conditioned on the
existence of the complainants clear legal right, which means one
clearly founded in or granted by law or is "enforceable as a matter
of law."29
As the registered owners and actual possessors of the property in
question, petitioners have a clear legal right to the property in
dispute. Section 51 of Presidential Decree (P.D.) No. 1529 provides
that registration is the operative act that conveys or affects
registered land as against third persons. 30 Thus, a TCT is the best
proof of ownership of land.31 In the case at bar, it is undisputed
that petitioners are the registered owners and actual possessors
of the subject property. Moreover, as the registered owners,
petitioners have the right to the possession of the property, which
is one of the attributes of ownership. 32
It was erroneous for respondents to assail the deed of sale
executed on October 1, 1987 in favor of petitioners, because this
constitutes a collateral attack on petitioners TCT. Section 48 of
P.D. No. 1529 prohibits a collateral attack on a Torrens title. 33 This
Court has held that a petition which, in effect, questioned the
validity of a deed of sale for registered land constitutes a
collateral attack on a certificate of title. 34 In the case at bar,
respondents allegation, that the deed of sale executed on
October 1, 1987 in favor of petitioners does not exist, clearly
constitutes a collateral attack on a certificate of title. The
allegation of the inexistence of the deed of sale in effect attacks
the validity of the TCT issued in the petitioners names.
Petitioners title to the property in dispute is not subject to the

outcome of the litigation covered by the notice of lis pendens

annotated on January 23, 1992. Section 24, Rule 14 of the 1964
Rules of Civil Procedure provides that a purchaser of the property
affected by the notice of lis pendens is deemed to have
constructive notice of the pendency of the action only from the
time of filing such notice.35 Section 14, Rule 13 of the 1997
Rules of Civil Procedure reiterates this rule. 36 Thus, a notice of lis
pendens affects a transferee pendente lite, who by virtue of the
notice, is bound by any judgment, which may be rendered for or
against the transferor, and his title is subject to the results of the
pending litigation.37
A notice of lis pendens neither affects the merits of a case nor
creates a right or a lien.38 It serves to protect the real rights of the
registrant while the case involving such rights is pending
resolution.39 While the notice of lis pendensremains on a
certificate of title, the registrant could rest secure that he would
not lose the property or any part of it during the litigation. 40 Once
a notice of lis pendens has been duly registered, any subsequent
transaction affecting the land involved would have to be subject
to the outcome of the litigation. For this reason, the Court has
pronounced that a "purchaser who buys registered land with full
notice of the fact that it is in litigation between the vendor and a
third party stands in the shoes of his vendor and his title is
subject to the incidents and result of the pending litigation." 41
In the case at bar, the notice of lis pendens does not affect
petitioners title to the property in dispute. A notice of lis pendens
concerns litigation between a transferor and a third party, where
the transferee who acquires land with a notice of lis pendens
annotated on the corresponding certificate of title stands in the
shoes of his predecessor and in which case the transferees title is
subject to the results of the pending litigation. The notice of lis
pendens does not concern litigation involving Rebuquiao, who
transferred his title to the property in dispute to petitioners, and
his title. The notice of lis pendens pertains to the JDRC case, an
action for nullity of the marriage between Avera and Domingo.
Since Rebuquiaos title to the property in dispute is not subject to
the results of the JDRC case, petitioners title to the same property

is also not subject to the results of the JDRC case.

To determine whether the second requisite for granting a writ of
injunction exists, that the act against which injunction is to be
directed is a violation of the complainants right, we must
examine the implications regarding the implementation of the
writ of execution over TCT No. 14216. Pursuant to this writ of
execution, Sheriff Valino served petitioners with a notice to
vacate.
If allowed to be carried out, the act against which the injunction is
directed, the implementation of the writ of execution, would
violate petitioners rights as the registered owners and actual
possessors of the property in dispute. The registered owner has
the right to possess and enjoy his property, without any
limitations other than those imposed by law. 42 The implementation
of the writ of execution would unduly deprive petitioners, as the
registered owners, of their right to possess the subject property,
which is one of the attributes of ownership. 43
We must stress that until petitioners title is annulled in a proper
proceeding, Avera has no enforceable right over the property in
dispute. At this point, petitioners possession of the subject
property must be respected. Since Avera failed to prove her
indubitable right over the subject property, we rule that
petitioners possess a clear and unmistakable right over the
property in dispute that requires the issuance of a writ of
injunction to prevent any damage to their interests as registered
owners.
IN VIEW WHEREOF, the petition is GRANTED. The Decision and
Resolution of the Court of Appeals in CA-G.R. CV No. 79327, dated
June 16, 2005 and October 4, 2005 respectively, are REVERSED
and SET ASIDE.
SO ORDERED.
REYNATO S. PUNOChief Justice