CIAR, JULIE ANNE PRINCESS A.CIVPRO – 2D ASSIGNMENT 7.1

[G.R. No. 157644, November 17, 2010, Brion, J.]SPOUSES ERNESTO and VICENTA TOPACIO vs. BANCO FILIPINO SAVINGS and MORTGAGE BANK

Facts:

Petitioners Sps Topacio filed a petition for review on certiorari assailing the CA decision and resolution denying their MR and affirming in toto the RTC decision, which issued an alias writ of possession in favor of respondent Banco Filipino.

Sps Topacio obtained a P400,000 loan from the bank and gave a Real Estate Mortgage as security. They failed to pay prompting the bank to extra-judicially foreclose. To satisfy the obligation, the provincial sheriff sold in auction the mortgaged the property, where bank emerged as highest bidder. A Cert of Sale was issued to the bank and was registered with Registry Of Deeds.

Bank filed a Petition for Issuance of a Writ of Possession, which RTC granted conditioned on the posting of P100,000 bond, which bank posted.

Writ of possession was not implemented because of Sps Topacio’s Writ to set aside auction sale and writ of possession. RTC thereafter issued TRO and writ of preliminary injunction sheriff from implementing writ of possession.

Bank filed an Answer to dissolve the writ of preliminary injunction, to which Sps Topacio filed a reply for its maintenance

More than 2 years after and several postponements, the Judge dismissed bank’s petition for “failure to prosecute”. However, no copy of this decision was served on respondent bank, whose operations were shut down by Monetary Bank

Nearly 6 years later, bank filed a motion to clarify the order of dismissal and moved for issuance of an alias writ of possession, which was denied.

Bank filed a Motion for Reconsideration. New judge reconsidered and issued alias writ. Petitioners file MR, claiming that dismissal order has long been final and executory and alias writ should be made in a separate motion. Both RTC and CA denied.

Issues:

WON the December 16, 1986 Dismissal Order constitutes an adjudication on the merits which has already attained finality, (that res judicata has set in)

WON a writ of possession may not be enforced upon mere motion of the applicant after the lapse of more than five (5) years from the time of its issuance.

Ruling:

1st Issue

The December 16, 1986 Dismissal Order never attained finality as it was not properly served.

As a rule, judgments are sufficiently served when they are delivered personally, or through registered mail to the counsel of record, or by leaving them in his office with his clerk or with a person having charge thereof. After service, a judgment or order which is not appealed nor made subject of a motion for reconsideration within the prescribed 15-day period attains finality.

In the present case, we note that the December 16, 1986 Dismissal Order cannot be deemed to have become final and executory in view of the absence of a valid service, whether personally or via registered mail, on the respondent’s counsel. We note in this regard that the petitioners do not dispute the CA finding that the “records failed to show that the private respondent was furnished with a copy of the said order of dismissal[.]” Accordingly, the Dismissal Order never attained finality.

Res Judicata did not set in as the first element is lacking.

The doctrine of res judicata embraces two (2) concepts: the first is “bar by prior judgment” under paragraph (b) of Rule 39, Section 47 of the Rules of Court, and the second is “conclusiveness of judgment” under paragraph (c) thereof.

Res judicata applies in the concept of “bar by prior judgment” if the following requisites concur: (1) the former judgment or order must be final; (2) the judgment or order must be on the merits; (3) the decision must have been rendered by a court having jurisdiction over the subject matter and

CIAR, JULIE ANNE PRINCESS A.CIVPRO – 2D ASSIGNMENT 7.1

the parties; and (4) there must be, between the first and the second action, identity of parties, of subject matter and of causes of action.

2nd Issue

No. The petitioners finally submit that the writ of possession, issued by the RTC on February 16, 1984, may no longer be enforced by a mere motion, but by a separate action, considering that more than five years had elapsed from its issuance, pursuant to Section 6, Rule 39 of the Rules of Court which only applies to civil actions.

In rejecting a similar argument, the Court has held that Section 6, Rule 39 of the Rules of Court finds application only to civil actions and not to special proceedings.

In the present case, Section 6, Rule 39 of the Rules of Court is not applicable to an ex parte petition for the issuance of the writ of possession as it is not in the nature of a civil action governed by the Rules of Civil Procedure but a judicial proceeding governed separately by Section 7 of Act No. 3135 which regulates the methods of effecting an extrajudicial foreclosure of mortgage.

The issuance of a writ of possession to a purchaser in an extrajudicial foreclosure is summary and ministerial in nature as such proceeding is merely an incident in the transfer of title.