Case 1

TITLE: SPOUSES ROBERTO BUADO and VENUS

BUADOvs.THE HONORABLE COURT OF
APPEALS, Former Division, and ROMULO
NICOL
SOURCE: G.R. No. 145222, April 24, 2009
PONENTE: TINGA, J.

FACTS:

Spouses Roberto and Venus Buado (petitioners) filed a

complaint for damages against ErlindaNicol (Erlinda) with the RTC of
Bacoor, Cavite. Said action originated from the criminal offense of
slander filed against her by petitioners. The trial court rendered a
decision ordering Erlinda to pay damages. Said decision was
affirmed, successively, by the Court of Appeals and this Court. It
became final and executory.

The trial court issued a writ of execution. Finding ErlindaNicol’s

personal properties insufficient to satisfy the judgment, the Deputy
Sheriff issued a notice of levy on real property on execution
addressed to the Register of Deeds of Cavite. Two (2) days before
the public auction sale on 28 January 1993, an affidavit of third-party
claim from one Arnulfo F. Fulo was received by the deputy sheriff
prompting petitioners to put up a sheriff’s indemnity bond. The
auction sale proceeded with petitioners as the highest bidder and a
certificate of sale was issued in favor of petitioners.RomuloNicol
(respondent), the husband of ErlindaNicol, filed a complaint for
annulment of certificate of sale and damages with preliminary
injunction against petitioners and the deputy sheriff. Respondent, as
plaintiff therein, alleged that the defendants, now petitioners,
connived and directly levied upon and execute his real property
without exhausting the personal properties of ErlindaNicol.

In response, petitioners filed a motion to dismiss on the

grounds of lack of jurisdiction and that they had acted on the basis of
a valid writ of execution. Petitioners claimed that respondent should
have filed the case with Branch 19 where the judgment originated
and which issued the order of execution, writ of execution, notice of
levy and notice of sheriff’s sale.In an Order dated 18 April 1994, the
RTC dismissed respondent’s complaint and ruled that Branch 19 has
jurisdiction over the case. Respondent moved for reconsideration but
it was denied.On appeal, the Court of Appeals reversed the trial court
and held that Branch 21 has jurisdiction to act on the complaint filed
by appellant. Petitioners maintain that Branch 19 retained jurisdiction
over its judgment to the exclusion of all other co-ordinate courts for its
execution and all incidents thereof. Petitioners insist that respondent,
who is the husband of the judgment debtor, is not the "third party"
contemplated in Section 17 (now Section 16), Rule 39 of the Rules of
Court, hence a separate action need not be filed. Respondent on the
other hand merely avers that the decision of the Court of Appeals is
supported by substantial evidence and in accord with law and
jurisprudence.

ISSUE:

Whether or not the Court of Appeals committed grave abuse of

discretion in remanding the case for further proceedings.

HELD:

Section 16, Rule 39 of the Rules of Court, which reads:

Sec. 16. Proceedings where property claimed by third person.

If the property levied on is claimed by any person other than the

judgment obligor or his agent, and such person makes an affidavit of
his title thereto or right to the possession thereof, stating the grounds
of such right or title, and serves the same upon the officer making the
levy and a copy thereof upon the judgment obligee, the officer shall
not be bound to keep the property, unless such judgment obligee, on
demand of the officer, files a bond approved by the court to indemnify
the third-party claimant in a sum not less than the value of the
property levied on. In case of disagreement as to such value, the
same shall be determined by the court issuing the writ of execution.
No claim for damages for the taking or keeping of the property may
be enforced against the bond unless the action therefor is filed within
one hundred twenty (120) days from the date of the filing of the bond.

The officer shall not be liable for damages for the taking or
keeping of the property, to any third-party claimant if such bond is
filed. Nothing herein contained shall prevent such claimant or any
third person from vindicating his claim to the property in a separate
action, or prevent the judgment obligee from claiming damages in the
same or a separate action against a third-party claimant who filed a
frivolous or plainly spurious claim.
When the writ of execution is issued in favor of the Republic of the
Philippines, or any officer duly representing it, the filing of such bond
shall not be required, and in case the sheriff or levying officer is sued
for damages as a result of the levy, he shall be represented by the
Solicitor General and if held liable therefore, the actual damages
adjudged by the court shall be paid by the National Treasurer out of
such funds as may be appropriated for the purpose.

Apart from the remedy of terceria available to a third-party

claimant or to a stranger to the foreclosure suit against the sheriff or
officer effecting the writ by serving on him an affidavit of his title and a
copy thereof upon the judgment creditor, a third-party claimant may
also resort to an independent separate action, the object of which is
the recovery of ownership or possession of the property seized by the
sheriff, as well as damages arising from wrongful seizure and
detention of the property. If a separate action is the recourse, the
third-party claimant must institute in a forum of competent jurisdiction
an action, distinct and separate from the action in which the judgment
is being enforced, even before or without need of filing a claim in the
court that issued the writ.

A third-party claim must be filed a person other than the

judgment debtor or his agent. In other words, only a stranger to the
case may file a third-party claim.

The filing of a separate action by respondent is proper and

jurisdiction is thus vested on Branch 21. Petitioners failed to show
that the Court of Appeals committed grave abuse of discretion in
remanding the case to Branch 21 for further proceedings.

WHEREFORE, the petition is DISMISSED. The Decision of the

Court of Appeals is AFFIRMED. Costs against petitioners.

Case 2
TITLE: SPOUSES ERNESTO and VICENTA TOPACIO,
as represented by their attorney-in-fact
MARILOU TOPACIO-NARCISOvs.BANCO
FILIPINO SAVINGS and MORTGAGE BANK
SOURCE: G.R. No. 157644, November 17, 2010
PONENTE: BRION, J.

FACTS:

The petitioners obtained a loan from the respondent. To secure

the loan, the petitioners executed a real estate mortgage in favor of
the respondent. The petitioners failed to pay the loan, prompting the
respondent to file a Petition for Extrajudicial Foreclosure of Mortgage.
To satisfy the obligation, the Provincial Sheriff of Bulacan, sold the
mortgaged property at public auction, where the respondent emerged
as the highest bidder. The respondent filed a Petition for the Issuance
of a Writ of Possession over the mortgaged property before the RTC
of Bulacan. The RTC granted the petition, conditioned on the posting
of bond. Upon posting of the required bond, the RTC issued a writ of
possession, commanding the sheriff to place the respondent in
possession of the property.

The writ of possession was not implemented  because, the

petitioners, filed with the RTC, a petition to set aside the auction sale
and the writ of possession (with application for a temporary
restraining order and a writ of preliminary injunction).  In an Order, the
RTC issued a temporary restraining order enjoining the respondent
and the Deputy Sheriff from implementing the writ of possession it
previously issued.  After hearing, the RTC, issued a writ of
preliminary injunction ordering the respondent and the Provincial
Sheriff to desist from implementing the writ of possession and to
refrain from interfering with and disrupting the possession of the
petitioners over the subject parcel of land. The respondent filed with
the RTC its Motion to Admit Answer with Opposition to the Petition to
Set Aside Auction Sale and Writ of Possession with Motion to
Dissolve or Lift Preliminary Injunction (Answer) which was granted,
the petitioners filed their Reply thereto, praying that the writ of
preliminary injunction previously issued be maintained.More than two
years after the filing of the Answer and the Reply, The Presiding
Judge issued an Order, dismissing the respondent’s petition for the
issuance of a writ of possession on the ground of "failure to
prosecute.No copy of the above Order was served on the
respondent.

Nearly six (6) years later (after the Court ordered the
reorganization and resumption of the respondent’s operations in G.R.
No. 70054, the respondent filed a Motion to Clarify the Order of
December 16, 1986. In the same motion, the respondent likewise
moved for the issuance of an alias writ of possession. The RTC
denied the respondent’s motion for the issuance of an alias writ of
possession. The respondent moved for the reconsideration  of the
September 18, 1992 Order. The RTC, reconsidered and set aside the
Order of December 16, 1986 and granted the respondent’s prayer for
the issuance of an alias writ of possession. The petitioners moved for
a reconsideration but it was denied. The petitioners filed before the
CA their Petition for Certiorari and Prohibition but again it was denied.
Hence, this petition before the Court.

ISSUE:

Whether or not the judgment in this case is properly served as

invoked by the petitioner.

HELD:

Under the rule of res judicata, a final judgment or decree on the

merits by a court of competent jurisdiction is conclusive of the rights
of the parties or their privies, in all later suits and on all points and
matters determined in the previous suit. The term literally means a
"matter adjudged, judicially acted upon, or settled by judgment."The
principle bars a subsequent suit involving the same parties, subject
matter, and cause of action. The rationale for the rule is that "public
policy requires that controversies must be settled with finality at a
given point in time."

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 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.
 In the present case, 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. 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.As a rule, a
party who deliberately adopts a certain theory upon which the case is
tried and decided by the lower court will not be permitted to change
the theory on appeal. Points of law, theories, issues and arguments
not brought to the attention of the lower court need not be, and
ordinarily will not be, considered by a reviewing court, as these
cannot be raised for the first time at such late stage. It would be unfair
to the adverse party who would have no opportunity to present further
evidence material to the new theory, which it could have done had it
been aware of it at the time of the hearing before the trial court. Thus,
to permit the petitioners in this case to change their theory on appeal
would thus be unfair to the respondent and offend the basic rules of
fair play, justice and due process.

WHEREFORE, the present petition is DENIED. The August 26,

2002 Decision and the March 17, 2003 Resolution of the Court of
Appeals in CA-G.R. SP No. 32389 areAFFIRMED. Costs against the
petitioners.

Case 3
TITLE: SPOUSES FRANCISCO D. YAP and WHELMA S.
YAPvs.SPOUSES ZOSIMO DY, SR. and
NATIVIDAD CHIU DY, SPOUSES MARCELINO
MAXINO and REMEDIOS L. MAXINO,
PROVINCIAL SHERIFF OF NEGROS ORIENTAL
and DUMAGUETE RURAL BANK, INC.

SPOUSES FRANCISCO D. YAP and WHELMA S.

YAPvs.SPOUSES ZOSIMO DY, SR. and
NATIVIDAD CHIU DY, SPOUSES MARCELINO
MAXINO and REMEDIOS MAXINO, and
PROVINCIAL SHERIFF OF NEGROSORIENTAL and
DUMAGUETE RURAL BANK, INC.
SOURCE: G.R. No. 171868, July 27, 2011
G.R. No. 171991, July 27, 2011
PONENTE: VILLARAMA, JR., J.

FACTS:

The Tirambulos executed a Real Estate Mortgage  over Lots 1,

4, 5, 6 and 8 in favor of the Rural Bank of Dumaguete, Inc.,
predecessor of Dumaguete Rural Bank, Inc. (DRBI), to secure
a P105,000 loan extended by the latter to them. Later, the Tirambulos
obtained a second loan for P28,000 and also executed a Real Estate
Mortgage over Lots 3 and 846 in favor of the same bank on August 3,
1978.

Subsequently, the Tirambulos sold all seven mortgaged lots to

the spouses ZosimoDy, Sr. and Natividad Chiu (the Dys) and the
spouses Marcelino C. Maxino and RemediosLasola (the Maxinos)
without the consent and knowledge of DRBI. This sale, which was
embodied in a Deed of Absolute Sale, was followed by a default on
the part of the Tirambulos to pay their loans to DRBI. Thus, DRBI
extrajudicially foreclosed the December 3, 1976 mortgage and had
Lots 1, 4, 5, 6 and 8 sold at public auction.At the auction sale, DRBI
was proclaimed the highest bidder and bought said lots. The Yaps
filed a Motion for Writ of Possession. The motion was granted, and a
Writ of Possession over Lots 1, 3 and 6 was issued in favor of the
Yaps on September 5, 1983.Thus, on May 28, 1984, the Dys and the
Maxinos went to the Office of the Sheriff of Negros Oriental and paid
for the principal plus interests and Sheriff’s Commission to effect the
redemption. The Yaps refused to take delivery of the redemption
price. On June 1, 1984, the Provincial Sheriff inform the Dys and the
Maxinos of the Yaps’ refusal to take delivery of the redemption
money and that in view of said development, the tender of the
redemption money was being considered as a consignation.On June
15, 1984, the Dys and the Maxinos filed Civil Case No. 8426 with the
Regional Trial Court of Negros Oriental for accounting, injunction,
declaration of nullity (with regard to Lot 3) of the Deed of Sale with
Agreement to Mortgage, and damages against the Yaps and
DRBI.Thereafter, on June 19, 1984, the Dys and the Maxinos
consigned to the trial court an additional sum plus sheriff’s
commission fee representing the remaining balance of the purchase
price that the Yaps still owed DRBI by virtue of the sale to them by
the DRBI of Lots 1, 3 and 6.

Meanwhile, the Yaps told DRBI that no redemption has been

made by the Tirambulos or their successors-in-interest and requested
DRBI to consolidate its title over the foreclosed properties by
requesting the Provincial Sheriff to execute the final deed of sale in
favor of the bank so that the latter can transfer the titles of the two
foreclosed properties to them. The Yaps also inform the Maxinos that
they were formally turning over the possession of Lot 3 to the
Maxinos, without prejudice to the final determination of the legal
implications concerning Lot 3.Laterthe Yaps filed Civil Case No. 8439
for consolidation of ownership, annulment of certificate of redemption,
and damages against the Dys, the Maxinos, the Provincial Sheriff of
Negros Oriental and DRBI. The trial court rendered decisionin favor
of the Yaps. The trial court amended the above dispositive portion
upon motion of DRBI. Aggrieved by the above ruling, the Dys and the
Maxinos elevated the case to the CA reversing the amended decision
of the trial court. Upon motion for reconsideration of the Yaps, the CA
amended its decision granting an appeal and reversing the RTC
Decision.
Hence, the consolidated petitions assailing the appellate court’s
decision.
ISSUE:

Whether or not the Dys and the Maxinos complied with Section
31, Rule 39 of the Rules of Court.

HELD:

Section 31, Rule 39 of the Rules of Court provides:

SEC. 31. Effect of redemption by judgment debtor, and a
certificate to be delivered and recorded thereupon. To
whom payments on redemption made.—If the judgment
debtor redeem, he must make the same payments as are
required to effect a redemption by a redemptioner,
whereupon the effect of the sale is terminated and he is
restored to his estate, and the person to whom the
payment is made must execute and deliver to him a
certificate of redemption acknowledged or approved
before a notary public or other officer authorized to take
acknowledgments of conveyances of real property. Such
certificate must be filed and recorded in the office of the
registrar of deeds of the province in which the property is
situated, and the registrar of deeds must note the record
thereof on the margin of the record of the certificate of
sale. The payments mentioned in this and the last
preceding sections may be made to the purchaser or
redemptioner, or for him to the officer who made the sale.
(Emphasis supplied.)

Here, the Dys and the Maxinos complied with the above-quoted
provision. Well within the redemption period, they initially attempted
to pay the redemption money not only to the purchaser, DRBI, but
also to the Yaps. Both DRBI and the Yaps however refused, insisting
that the Dys and Maxinos should pay the whole purchase price at
which all the foreclosed properties were sold during the foreclosure
sale. Because of said refusal, the Dys and Maxinos correctly availed
of the alternative remedy by going to the sheriff who made the sale.
As held in Natino v. Intermediate Appellate Court, the tender of the
redemption money may be made to the purchaser of the land or to
the sheriff. If made to the sheriff, it is his duty to accept the tender
and execute the certificate of redemption.

WHEREFORE, the petitions for review on certiorari

are DENIED for lack of merit. The Decision dated May 17, 2005 and
Resolution dated March 15, 2006 of the Court of Appeals in CA-G.R.
C.V. No. 57205 are hereby AFFIRMED with the
MODIFICATION that the case is REMANDED to the Regional Trial
Court of Negros Oriental, Branch 44, Dumaguete City, for the
computation of the pro-rata value of properties covered by TCT No.
T-14777 (Lot 1) and TCT No. T-14781 (Lot 6) of the Registry of
Deeds of Negros Oriental at the time of redemption to determine if
there is a deficiency to be settled by or overpayment to be refunded
to respondent Spouses ZosimoDy, Sr. and Natividad Chiu and
Spouses Marcelino C. Maxino and RemediosLasola with regard to
the redemption money they paid.

With costs against the petitioners.

Case 4
TITLE: DIESEL CONSTRUCTION COMPANY,
INC.vs.JOLLIBEE FOODS CORPORATION
SOURCE: G.R. No. 136805, January 28, 2000
PONENTE: PANGANIBAN, J.

FACTS:
DCCI instituted an action for the recovery of escalated
construction costs which it had allegedly incurred in the construction
of buildings owned by Respondent JFC. DCCI obtained a favorable
judgment from the RTC. However, contending that the RTC failed to
order payment of extra work done, DCCI filed a Notice of Appeal; and
a Motion for Execution Pending Appeal. In said Motion, it cited as
"good reasons" its financial distress as a small business. The trial
court allowed execution pending appeal. And in view of both parties'
appeals, the trial court forwarded the original records of the case to
the appellate court for further proceedings.

CA directed the RTC to issue a writ of execution upon

petitioner's posting a bond, but afterwards it issued an order to stay
execution upon respondent's filing of a supersedeas bond.

ISSUE:
Whether or not CA erred in directing the stay of execution
pending appeal previously allowed by the lower court.

HELD:

The CA may not be compelled to enforce a Special Order

issued by the trial court. The CA has its own separate and original
discretionary jurisdiction to grant or to stay execution pending appeal,
except in civil cases decided under the Rules on Summary Procedure
and in other cases when the law or the Rules provide otherwise.

Rule 39 of the 1997 Rules states: Sec. 2. Discretionary

execution. (a) Execution of a judgment or final order pending appeal.
On motion of the prevailing party with notice to the adverse party filed
in the trial court while it has jurisdiction over the case and is in
possession of either the original record or the record on appeal, as
the case may be, at the time of the filing of such motion, said court
may, in its discretion, order execution of a judgment or final order
even before the expiration of the period to appeal.
After the trial court has lost jurisdiction, the motion for execution
pending appeal may be filed in the appellate court.
Discretionary execution may only issue upon good reasons to be
stated in a special order after due hearing.

The foregoing sections mean that after the perfection of the

appeal and the transmittal of the records, the trial court loses
jurisdiction over the case. Henceforth, it may no longer grant a motion
for, or issue a writ of immediate execution; to do so would be an
abuse of discretion.

While it is true that the trial court granted the Motion of the
petitioner for execution pending appeal, it did not actually issue a writ
of execution, because the latter had failed to comply with the Special
Order proviso requiring the posting of a bond. Eventually, two
separate appeals filed by both parties were perfected, and the
records of the case were transmitted by the RTC to the CA. From
then on, the trial court lost jurisdiction to issue the said writ. When the
petitioner asked the CA for the issuance of the writ at the time, it
thereby invoked the original discretionary jurisdiction of the latter to
grant execution pending appeal.

WHEREFORE, the assailed Resolutions are SET ASIDE. This

Court finds no "good reasons" to grant extraordinary execution in the
context of the present case. No pronouncement as to costs.

Case 5
TITLE: ISSAC VILLEGASvs.VICTOR LINGAN and ATTY.
ERNESTO CARROEN
SOURCE: G.R. No. 153839, June 29, 2007
PONENTE: AUSTRIA-MARTINEZ, J.

FACTS:

Petitioner was the registered owner of a parcel of land in

Cagayan. In order to secure the payment of a loan from DBP, the
petitioner constituted a REM over the said parcel of land in favor of
DBP.  The said loan and mortgage was subsequently transferred by
the DBP to the Home Mutual Development Fund (HMDF).  When the
petitioner failed to settle his loan, the REM constituted over the
property was foreclosed, the property was sold at public auction and,
as the HMDF was itself the highest bidder at such public auction, a
certificate of sheriff’s sale was issued.  By virtue of a power of
attorney (GPA) executed by petitioner’s wife, Marilou Villegas in favor
of Gloria Catral, the latter redeemed the property from the HMDF.

In 1996, Catral, by virtue of the same GPA, executed a Deed of

Sale in favor of respondent Victor Lingan.
 Petitioner filed a Complaint for Annulment of Title and
Instrument with Damages with the RTC against respondent.
Petitioner argued that the GPA executed in favor of Catral created a
principal-agent relationship only between his wife, Marilou as
principal, and Catral, as agent, and then only for the latter to
administer the properties of the former and that he never authorized
Catral to administer his properties, particularly, herein subject
property. However, RTC dismissed the complaint.

On appeal to CA, CA affirmed the decision of RTC and ruled

that when the redemption of the property had been made by Catral by
virtue of a GPA executed in her favor by Marilou, it follows that the
petitioner is no longer the owner of the subject property but his wife,
Marilou; that the issue as to whether the power of attorney was a
special or general one is of no moment because the petitioner was no
longer the owner of the property when it was sold; in other words, any
disposition of the property needs no power of attorney from the
petitioner himself.

ISSUE:

Whether Marilou, the wife of the petitioner, as successor-in-

interest, may validly redeem the property in question.

HELD:

YES.Section 27, Rule 39 of the 1997 Rules of Civil Procedure,

provides:

SEC. 27.  Who may redeem real property so sold. –Real

property sold as provided in the last preceding section, or any
part thereof sold separately, may be redeemed in the manner
hereinafter provided, by the following persons:
 
(a)  The judgment obligor, or his successor-in-interest in the
whole or any part of the property;
 
The “successor-in-interest” of the judgment debtor referred to in
the above provision includes a person who succeeds to his property
by operation of law, or a person with a joint interest in the property, or
his spouse or heirs. 
Section 33, Rule 39, Rules of Court, states:

SEC. 33.  Deed and possession to be given at expiration

of redemption period; by whom executed or given. – If no
redemption be made within one (1) year from the date of
the registration of the certificate of sale, the purchaser is
entitled to a conveyance and possession of the property;
or, if so redeemed whenever sixty (60) days have elapsed
and no other redemption has been made, and notice
 thereof given, and the time for redemption has expired,
the last redemptioner is entitled to the conveyance and
possession; but in all cases the judgment obligor shall
have the entire period of one (1) year from the date of the
registration of the sale to redeem the property.  
Upon the expiration of the right of redemption, the
purchaser or redemptioner shall be substituted to and
acquire all the rights, title, interest and claim of the
judgment obligor to the property at the time of the levy.
The possession of the property shall be given to the
purchaser or last redemptioner by the same officer unless
a third party is actually holding the property adversely to
the judgment obligor.
     
Under the above provision, petitioner could have redeemed the
property from Marilou after she had redeemed it. The pleadings filed
and the records of this case do not show that petitioner exercised
said right.  Consequently, as correctly held by the CA, Marilou
acquired ownership of the subject property. All rights and title of the
judgment obligor are transferred upon the expiration of the right of
redemption. 

And where the redemption is made under a property regime

governed by the conjugal partnership of gains, Article 109 of the
Family Code provides that property acquired by right of redemption is
the exclusive property of the spouses redeeming the
property. Clearly, therefore, Marilou, as owner, had the right to sell
the property to another.

WHEREFORE, the petition is DENIED.  The Decision

and Resolution of the Court of Appeals are  AFFIRMED.
Costs against the petitioner.