No. L-34007.
 May 25, 1979:* Same; Same; Court as land registration court may adjudicate ownership of
MARCELINO BELAMIDE, ALFREDO BELAMIDE (deceased and herein
substituted by his children Rodolfo, Reynaldo, Lilian and Alfredo, Jr., all
surnamed Belamide), JOSE BELAMIDE, ANTONIO BELAMIDE, MARIA
BELAMIDE, LEONISA BELAMIDE and SALUD BELAMIDE,
petitioners, vs. THE HONORABLE COURT OF APPEALS and BIENVENIDO
MONTOYA, FRANCISCA MONTOYA and GREGORIO MONTOYA,
respondents.
Evidence; New Trial; New Trial cannot be obtained on ground that court
relied on falsified evidence where movants could have presented the alleged genuine
document, that respondent’s father is unknown, during the trial.—There can be no
grave abuse of discretion by the Court of Appeals in denying petitioner’s Motion for
New Trial. The document alleged to be falsified (Exh. 8) was presented in the trial in
the lower court. Petitioners should have attacked the same as falsified with
competent evidence, which could have been presented, if they had exercised due
diligence in obtaining said evidence, which is Annex “A” to the Motion for New
Trial (Annex F to Petition). It is, therefore, not a newly discovered evidence that
could justify a new trial (rule 37 [1-b], Rules of Court.)
Same; Same; Alleged newly-discovered evidence will not change the result as
found by the decision below. Hence, new trial properly denied.—The new evidence
would neither change the result as found by the decision. It might prove that Hilarion
Montoya was registered at birth without his father having been given, but from the
testimony of Marcelino Belamide, one of the applicants (now petitioners), Vicenta
Montoya was married twice, although he did not know the first husband. Likewise,
in the opposition of private respondents (pp. 30-31, Record on Appeal), it is there
alleged that the land originally belonged to the spouses Martin Montoya and Vicenta
Montoya. This allegation was never contradicted.
Jurisdiction; Land Registration; Lower Court as a land registration court may
adjudicate the land applied for registration to the applicants and oppositors when
compelled to do so by the conflicting claims of ownership of the parties to the
proceedings.—The jurisdic-
176
176  SUPREME COURT REPORTS ANNOTATED 
Belamide vs. Court of Appeals
tion of the lower court as a land registration court to adjudicate the land for
purposes of registration cannot, as petitioners try to do, be questioned. The applicants
and oppositors both claim rights to the land by virtue of their relationship to the
original owner, the late Vicenta Montoya. The Court is thus necessarily impelled to
determine the truth of their alleged relationship, and on the basis thereof, to
adjudicate the land to them as the law has prescribed to be their successional rights.
The law does not require the heirs to go to the probate court first before applying for
the registration of the land, for a declaration of heirship. This would be a very
combersome procedure, unnecessarily expensive and unreasonably inconvenient,
clearly averse to the rule against multiplicity of suits.
land sought to be registered between applicants and oppositors who in effect
acquiesced to the exercise of that jurisdiction and presented their respective claims
of ownership over the land in question.—In filing their opposition to the application,
private respondents merely went to the same court invoking its jurisdiction in exactly
the same fashion as did the petitioners. In effect, there was unanimity among the
parties in consenting to, or acquiescing in, the exercise of the jurisdiction of the land
registration court, no matter whether same is a limited one. With this premise, and
with the full opportunity given both parties to air their sides with the presentation of
all evidence as they may desire in support thereof, as fully as could be done in the
ordinary court with general jurisdiction, the decision of the lower court, sitting as a
land court, supported as it is with sufficient evidence, may no longer be questioned
on jurisdictional grounds.
PETITION for certiorari to review the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
     Beltran, Beltran & Beltran for petitioners.
     Fortunato Jose for private respondents.
DE CASTRO, J.:
This is a petition for certiorari to review the decision of the Court of Appeals (4th
Division) promulgated on June 9, 1971, affirming the amended decision of the Court
of First Instance of Cavite City the dispositive portion of which reads: 
IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court
hereby adjudicates the parcel of land described in Plan Psu-18949
situated in the poblacion of Silang, Cavite, in favor of the
applicants (Marcelino Belamide, of legal age, Filipino, married to
Patrocinia de Castro, and resident of Silang Cavite; Alfredo
Belamide, of legal age, Filipino, married to Anita Velez, and
resident of Silang, Cavite; Jose Belamide, of legal age, Filipino,
married to Elisea Quiamzon and resident of Silang Cavite; Antonio
Belamide, of legal age, Filipino, single, and resident of Silang,
Cavite; Maria Belamide, Filipino, of legal age, married to Sofronio
Bayla and resident of Silang, Cavite; Leonisa Belamide, of legal
age, married to Fulgencio Reyes, and resident of Silang, Cavite;
and Salud Bede of legal age, Filipino, married to Conrado
Menchavez and resident of Silang, Cavite) and the oppositors
(Bienvenido Montoya, Gregorio Montoya and Francisco Montoya,
Filipinos, of legal age, married and residents of Silang, Cavite) in
the following proportions: 
1
 Three-fourths (3/4) undivided share belongs to the applicants, and
one-fourth (1/4) undivided share belongs to the oppositors.  the sale made by Susana Velardo Belamide in favor of the
Once this decision becomes final, let the corresponding decree of
registration be issued upon proof that the corresponding estate and
inheritance taxes have been paid, or certificate of tax exemption
has been issued.  As earlier stated, the Court of Appeals affirmed the amended decision of the Court of
Petitioners herein were the applicants for the registration of the parcel of land
involved in this case The private respondents were the oppositors allowed on Motion
for a New Trial, to file an opposition even after a decision has already been rendered
by then Judge Felix V. Makasiar, after hearing, following the issuance of a general
default order. (par. 1-3, Petition).  Court of Appeals is a falsified document, As recited in the petition, par. 12 thereof
From the amended decision rendered after the new trial both parties appealed to the
Court of Appeals which found the essential facts as narrated in the decision appealed
thereto as duly established by the evidence, and quoted the same approvingly as
follows:  column is in blank. But according to Exhibit 8, the name of the
The next question that presents itself is when and by whom was the
land in question acquired. The oppositors allege that the
acquisition was made during the first marriage of Vicente Montoya
to Martin Montoya, whereas the applicants maintain that such land
was acquired during the marriage (second marriage) of Vicente
Montoya to Jose Velardo Both contentions are not supported by
any document. However, the fact that Susana Velardo Belamide
sold a portion of the land in question (Exh. 6) to the Municipality
of Silang, Cavite (for widening of the street) on May 1933 without
the intervention of, or opposition from, Hilarion Montoya who died
on December 2, 1955 (Exh. 3), coupled with the fact that Susana
Velardo Belamide has possession of the property since the death of
her mother Vicenta Montoya) in 1931 after she sold the same to
the herein applicants on July 20, 1951 (Exh. B), convince the Court
that said property was acquired during the coverture of Jose
Velardo and Vicenta Montoya. Consequently, upon the death of
Jose Velardo in 1888, the one-half (½) undivided portion of the
property passed by inheritance to Susana Velardo Belamide and
the other one-half (½) undivided portion went to Vicenta Montoya
as her share of the conjugal estate. Upon the death of the latter on
February 28, 1931, her undivided one half (½) share of the
property should be divided equally between Susana Velardo
Belamide and Hilarion Montoya, that is, each is entitled to one-
fourth (1/4) undivided share. Hence, Susana Velardo Belamide's
share is three-fourths (3/4) while Hilarion Montoya's share passed
by inheritance to his children, the herein oppositor. For this reason,
applicants (Exh. B) is null and void only with respect to the one-
fourth (1/4) undivided portion of the property (the share of the
herein oppositors) who did not consent to the sale). 
First Instance, this time rendered by Hon. Jose P. Alejandro, and denied a Motion for
Reconsideration filed by the petitioners herein on June 29, 1971 (Annex E to
Petition), as well as a Motion for a New Trial (Annex F to Petition). The ground for
the Motion for New Trial was that Exhibit 8 of the oppositors (private respondents
herein) which was allegedly relied upon by both the Court of First Instance and the
(p. 8, Reno the falsification consists of the following: 
According to tie official records of the Civil Registrar of Silang,
Cavite, the name of the father of Hilarion Montoya in the marriage
father of Hilarion Montoya is Martin Montoya. Thus, whale the
official record of the civil registrar shows that oppositors' father,
Hilarion, had an unknown father, thru falsification, Hilarion father
was made to appear in Exhibit 8 as Martin Montoya. The latter
false. ly became husband of Vicente Montoya, thereby enabling
private respondents to inherit 1/4 of the land in dispute from
Vicente Montoya.
It is the denial of the Motion for New Trial by the Court of Appeals which petitioners
allege to be in grave abuse of discretion, and their allegation that the Court of First
Instance, as a land registration court, has no jurisdiction to declare who are the heirs
of Vicente Montoya and partition the property by adjudicating 1/4 pro-indiviso to
private respondents as children of Hilarion Montoya, allegedly an unacknowledged
natural child of Vicenta Montoya, and that as a consequence, the Court of Appeals,
likewise, is without jurisdiction, or acted in grave abuse of discretion, in affirming
the decision of the lower court, that petitioners came to this Court with the present
petition. 
1. There can be no grave abuse of discretion by the Court of Appeals in denying
petitioners' Motion for New Trial. The document alleged to be falsified (Exh. 8) was
presented in the trial in the lower court. Petitioners should have attacked the same as
falsified with competent evidence, which could have been presented, if they had
exercised due diligence in obtaining said evidence, which is Annex "A" 1 to the
Motion for New Trial (Annex F to Petition). 2 It is, therefore, not a newly discovered
evidence that could justify a new trial (Rule 37 [1-b], Rules of Court). 
2
The new evidence would neither change the result as found by the decision. It might
prove that Hilarion Montoya was registered at birth without his father having been
given, but from the testimony of Marcelino Belamide, one of the applicants (now
petitioners), Vicente Montoya was married twice, although he did not know the first
husband. Likewise, in the opposition of private respondents (pp. 30-31, Record on
Appeal) 3 , it is there alleged that the land originally belonged to the spouses Martin
Montoya and Vicente Montoya. This allegation was never contradicted. The
document sought to be presented by petitioners, as stated in their Motion for New
Trial in the Court of Appeals, cannot effectively destroy this allegation, first, because
the marriage between Martin Montoya and Vicenta Montoya could have taken place
after the birth of Hilarion Montoya who was thus legitimized, and second, Martin
Montoya and Vicente Montoya evidently lived together as husband and wife, and
are, therefore, presumed to have been legally married (Section 5, par. [bb] Rule 131,
Rules of Court). This Court held that a man and a woman who are living under the
same roof are presumed to be legitimate spouses (Que Quay vs. Collector of
Customs, 33 Phil. 128), and in the instant case, no less than one of the herein
petitioners, Marcelino Belamide, testified that Vicenta Montoya married twice. The
records suggest no other husband by the first marriage than Martin Montoya, who
then could have been the father of Hilarion Montoya who, undisputedly, is the son of
Vicente Montoya.  G.R. No. 112795. June 27, 1994.*
With the law and the evidence showing with reasonable sufficiency that Hilarion
Montoya from whom private respondents would derive hereditary rights over the
land in question, is the legitimate son of Vicenta Montoya, the adjudication of said
land by the lower court, as specified in its decision, is in accordance with law.  the grounds for a motion for new trial under Rule 37, which are: (1) that petitioner’s
2. The jurisdiction of the lower court as a land registration court to adjudicate the
land for purposes of registration cannot, as petitioners try to do, be questioned. The
applicants and oppositors both claim rights to the land by virtue of their relationship
to the original owner, the late Vicente Montoya. The Court is thus necessary
impelled to determine the truth of their alleged relationship, and on the basis thereof,
to adjudicate the land to them as the law has prescribed to be their successional
rights. The law does not require the heirs to go to the probate court first before
applying for the registration of the land, for a declaration of heirship. This would be
a very cumbersome procedure, unnecessarily expensive and unreasonably
inconvenient, clearly averse to the rule against multiplicity of suits.  not be embodied in a separate document but may be incorporated in the petition
Furthermore, petitioners Should not now be heard to complain after they have
themselves gone to the lower court to have their title to the land registered in their
names without having had a previous declaration of their heirship by the probate
court. In filing their opposition to the application, private respondents merely went to
the same court invoking its jurisdiction in exactly the same fashion as did the
petitioners. In effect, there was unanimity among the parties in consenting to, or
acquiescing in, the exercise of the jurisdiction of the land registration court, no
matter whether Same is a limited one. With this premise, and with the full
opportunity given both parties to air their sides with the presentation of all evidence
as they may desire in support thereof, as fully as could be done in the ordinary court
with general jurisdiction, the decision of the lower court, sitting as a land court,
supported as it is with sufficient evidence, may no longer be questioned on
jurisdictional grounds. (See Martin Aglipay vs. Hon. Isabelo delos Reyes, Jr., G. R.
No. L-12776, March 23, 1960; Franco vs. Monte de Piedad and Savings Bank, L-
17610, April 22, 1963, 7 SCRA 660; City of Tarlac vs. Tarlac Development
Corporation, L-24557, July 31, 1968, 24 SCRA 466; City of Manila vs. Manila
Lodge No. 761, L-24469, July 31, 1968, 24 SCRA 466; City of Manila vs. Army and
Navy Club of Manila, L-24481, 24 SCRA 466; Demetrio Manalo vs. Hon. Herminio
C. Mariano, et. al., L-33850, January 22, 1976, 69 SCRA, 80). 
For all the foregoing, the instant petition is hereby dismissed for lack of merit. Costs
against petitioners. 
SO ORDERED.
AUGUSTO CAPUZ, petitioner, vs. THE COURT OF APPEALS and ERNESTO
BANEZ, respondents.
Civil Procedure; Default; Affidavit of Merit; Grounds for a motion for new
trial.—We agree that the verified motion of petitioner could be considered as a
motion for new trial. The grounds alleged by petitioner in his motion are the same as
failure to file his answer was due to fraud, mistake, accident or excusable negligence;
and (2) that he has a meritorious defense. Petitioner explained that upon receiving the
summons, he immediately saw private respondent and confronted him with the
receipt evidencing his payment. Thereupon, private respondent assured him that he
would instruct his lawyer to withdraw the complaint. The prior payment of the loan
sought to be collected by private respondent is a good defense to the complaint to
collect the same loan again. The only reason why respondent court did not consider
the motion of petitioner as a motion for new trial was because the said motion did not
include an affidavit of merit. The allegations contained in an affidavit of merit
required to be attached to a motion to lift an order of default or for a new trial need
itself. As held in Tanhu v. Ramolete, 66 SCRA 425 (1975): “Stated otherwise, when
a motion to lift an order of default contains the reasons for the failure to answer as
well as the facts constituting the prospective defense of the defendant and it is sworn
to by said defendant, neither a formal verification nor a separate affidavit of merit is
necessary.”
Same; Same; Same; Appeal; Remedy against an order of default.—Speaking
for the Court in Circle Financial Corporation v. Court of Appeals, 196 SCRA 166
(1991), Chief Justice Andres R. Narvasa opined that the affidavit of merit may either
3
be drawn up as a separate document and appended to the motion for new trial or the
facts which should otherwise be set out in said separate document may, with equal
effect, be alleged in the verified motion itself. Respondent court erred when it held
that petitioner should have appealed from the decision, instead of filing the motion to
lift the order of default, because he still had two days left within which to appeal
when he filed the said motion. Said court must have in mind paragraph 3 of Section
2, Rule 41  After petitioner failed to file any answer, private respondent filed on September 25,
_______________
*
 FIRST DIVISION.
472
472  SUPREME COURT REPORTS ANNOTATED 
Capuz vs. Court of Appeals
of the Revised Rules of Court, which provides that: “a party who has been
declared in default may likewise appeal from the judgment rendered against him as
contrary to the evidence or to the law, even if no petition for relief to set aside the
order of default has been presented by him in accordance with Rule 38.” Petitioner
properly availed of the remedy provided for in Section 1, Rule 65 of the Revised
Rules of Court because the appeal under Section 2, Rule 41 was not, under the
circumstances, a “plain, speedy and adequate remedy in the ordinary course of law.”
In an appeal under Section 2, Rule 41, the party in default can only question the
decision in the light of the evidence on record. In other words, he cannot adduce his
own evidence, like the receipt to prove payment by petitioner herein of his obligation
to private respondent.
PETITION for review on certiorari to reverse and set aside a decision of the Court of
Appeals.
On July 15, 1992, private respondent filed a complaint for a sum of money against
petitioner with the Regional Trial Court, Branch 130, Kalookan City (Civil Case No.
C-15501).
On September 5, petitioner was served with summons.
an Ex parte Motion to Declare Defendant in Default.
On October 23, the trial court issued an order declaring petitioner in default and
authorizing private respondent to present his evidence ex parte.
On October 28, private respondent presented his evidence ex parte.
On November 6, the trial court rendered a decision, disposing as follows:
WHEREFORE, judgment is hereby rendered in favor of the
plaintiff ERNESTO BANEZ against the defendant AUGUSTO
CAPUZ ordering the defendant to pay the following:
1. The principal amount of
P90,000.00 plus 12%
interest per annum from June
13, 1992, the date of the
written demand, until fully
paid;

The facts are stated in the opinion of the Court. 2. P10,000.00 as attorney's
     Nony R. Rivera for petitioner. fees;
     Semproniano S. Ochoco for private respondent.
3. P1,000.00 as litigation
expenses and the costs (Rollo,
QUIASON, J.: p. 11).

This is a petition for review on certiorari under Rule 45 of the Revised Rules of On November 13, petitioner received a copy of the Order dated October 23, 1992
Court to reverse and set aside the decision of the Court of Appeals in CA-G.R. SP and the Decision dated November 6, 1992.
No. 30030, which affirmed the judgment by default of the Regional Trial Court,
Branch 130, Kalookan City in Civil Case No. C-15501. On November 23, petitioner filed a verified motion to lift the order of default and to
set aside the decision.
We grant the petition.
In said motion, petitioner averred that:
I

4
 1. Defendant's failure to file his responsive pleading is due to
fraud, mistake, accident and/or excusable neglect, and that when
defendant received a copy of the summons and the complaint on
September 5, 1992, defendant wasted no time in seeing the
plaintiff and confronted him about his receipt (payment of the
subject obligation), plaintiff assured the defendant that he
(plaintiff) will instruct his lawyer to withdraw the complaint, and
not to worry anymore. Defendant took the word of his "compadre"
the plaintiff. Hence, defendant did not file his answer to the
complaint (Rollo, p. 11).
On December 7, the trial court issued an order, denying petitioner's verified urgent
motion, the pertinent portion of which reads:
The filing of the motion to lift order of default did not stop the
running of the period of appeal, for his only right at the moment is
to receive notice of further proceedings regardless of whether the
order of default is set aside or not. On the other hand, defendant
could have appealed the Decision before the expiration of the
period to appeal, for he is granted that right by the Rules. Since he
failed to make a timely appeal, the decision rendered in this case
has became (sic) final (Rollo, p. 12).
On December 23, petitioner filed an urgent motion asking for the reconsideration of
the Order dated December 7, 1992, claiming: (1) that the said order was prematurely
issued; (2) that the trial court erred in holding that the decision had become final; and
(3) that the said order was contrary to law and jurisprudence.
On January 6, 1993, the trial court issued an order, denying petitioner's motion for
reconsideration.
Petitioner filed a petition for certiorari under Rule 65 of the Revised Rules of Court
with the Court of Appeals.
On November 18, the Court of Appeals dismissed the petition for lack of merit,
holding: (1) that petitioner's motion to lift the order of default and set aside the
judgment was improper because there was already a judgment by default rendered
when it was filed; (2) that having discovered the order of default after the rendition
of the judgment, the remedy of petitioner was either to appeal the decision or file a
motion for new trial under Rule 37; and (3) that the said motion could not be
considered as a motion for new trial under Rule 37 because it was not accompanied
by an affidavit of merit.
II
In the instant petition, petitioner argues that the motion to lift the order of default and
to set aside the decision could be treated as a motion for new trial under Rule 37 and
that a separate affidavit of merit need not be submitted considering that the said
motion was verified.
We agree that the verified motion of petitioner could be considered as a motion for
new trial. The grounds alleged by petitioner in his motion are the same as the
grounds for a motion for new trial under Rule 37, which are: (1) that petitioner's
failure to file his answer was due to fraud, mistake, accident or excusable negligence;
and (2) that he was a meritorious defense. Petitioner explained that upon receiving
the summons, he immediately saw private respondent and confronted him with the
receipt evidencing his payment. Thereupon, private respondent assured him that he
would instruct his lawyer to withdraw the complaint. The prior payment of the loan
sought to be collected by private respondent is a good defense to the complaint to
collect the same loan again.
The only reason why respondent court did not consider the motion of petitioner as a
motion for new trial was because the said motion did not include an affidavit of
merit.
The allegations contained in an affidavit of merit required to be attached to a motion
to lift an order of default or for a new trial need not be embodied in a separate
document but may be incorporated in the petition itself. As held in Tanhu
v. Ramolete, 66 SCRA 425 (1975):
Stated otherwise, when a motion to lift an order of default contains
the reasons for the failure to answer as well as the facts
constituting the prospective defense of the defendant and it is
sworn to by said defendant, neither a formal verification nor a
separate affidavit of merit is necessary.
Speaking for the Court in Circle Financial Corporation v. Court of Appeals, 196
SCRA 166 (1991), Chief Justice Andres R. Narvasa opined that the affidavit of merit
may either be drawn up as a separate document and appended to the motion for new
trial or the facts which should otherwise be set out in said separate document may,
with equal effect, be alleged in the verified motion itself.
Respondent court erred when it held that petitioner should have appealed from the
decision, instead of filing the motion to lift the order of default, because he still had
two days left within which to appeal when he filed the said motion. Said court must
have in mind paragraph 3 of Section 2, Rule 41 of the Revised Rules of Court, which
provides that: "a party who has been declared in default may likewise appeal from
the judgment rendered against him as contrary to the evidence or to the law, even if
5

no petition for relief to set aside the order of default has been presented by him in
accordance with Rule 38."
Petitioner properly availed of the remedy provided for in Section 1, Rule 65 of the
Revised Rules of Court because the appeal under Section 2, Rule 41 was not, under
the circumstances, a "plain, speedy and adequate remedy in the ordinary course of
law." In an appeal under Section 2, Rule 41, the party in default can only question
the decision in the light of the evidence on record. In other words, he cannot adduce
his own evidence, like the receipt to prove payment by petitioner herein of his
obligation to private respondent.
WHEREFORE, the petition is GRANTED. The challenged decision of the Court of
Appeals is REVERSED and the judgment dated November 6, 1992 of the Regional
Trial Court, Branch 130, Kalookan City is SET ASIDE. Let this case be remanded to
the court of origin for further proceedings. No pronouncements as to costs.
SO ORDERED.
G.R. No. 62896. August 21, 1989.*
SPOUSES CARLOS DAVID and TERESITA DAVID, and JESUS B. PASION,
petitioners, vs. HON. OSCAR C. FERNANDEZ, in his capacity as Presiding
Judge of the Court of First Instance of Bulacan, Branch IV, Baliuag, Bulacan,
(now the Regional Trial Court, Baliuag Branch), FRANCISCA LAGMAN-
MANANGHAYA, in her own behalf and as natural guardian of her minor
children NOEL, NOLLY and JOY, all surnamed MANANGHAYA, respondents.
Remedial Law; Civil Procedure; New Trial; Once a new trial is granted
under Section 5 of Rule 37 of the Rules of Court, the original judgment is vacated.—
As provided under Section 5 of Rule 37 of the Revised Rules of Court: “If a new trial
be granted in accordance with the provisions of this rule, the original judgment shall
be vacated, and the action shall stand for trial de novo; but the recorded evidence
taken upon the former trial so far as the same is material and competent to establish
the issues, shall be used at the new trial without retaking the same.” The law is
unmistakably clear that once a new trial is granted under aforesaid Rule, the original
judgment is vacated. The phrase “to vacate” applied to a judgment means “to annul,
to render void.”
_______________
*
 THIRD DIVISION.
609
VOL. 176, AUGUST 21,, 1989  609 
David vs. Fernandez
Same; Same; Same; Same; The grant of a motion for new trial results in the
nullification of the judgment by default including all the consequential effects
thereof.—As petitioners’ motion for new trial was subsequently granted by the
respondent court, this resulted in the nullification of its judgment by default dated
April 10, 1981 against petitioners in said civil case, including all the consequential
effects thereof, to wit: the Writ of Execution, the corresponding levy on the personal
properties of petitioners and the public auction sale.
Same; Same; Same; Same; Same; Court finds validity and strength in
petitioner’s claim for restitution of the P12,000.00 proceeds of the sale in execution
of petitioners’ personal properties levied upon due to the granting of a new trial in
the subject civil case.—The Court thus finds validity and strength in petitioners’
claim for restitution of the P12,000.00 proceeds of the sale on execution of
petitioners’ personal properties levied upon pursuant to a writ of execution which
was subsequently recalled due to the granting of a new trial in the subject civil case.
Considering that the motion for restitution was filed while the subject civil case was
still undergoing trial, a stage wherein the rights and obligations of the parties have
not yet been determined, it would be unfairly enriching the private respondents, even
temporarily, if they are allowed to keep possession of the proceeds of the sale of
petitioners’ personal properties in the amount of P12,000.00. As Civil Case No.
1136-B then stood, there has yet been no adjudication of rights and obligations
between the parties. Furthermore, there was never a plaintiff’s bond to speak of in
the first place against which petitioners may proceed in case of a favorable judgment
since the writ of execution was issued pursuant to a judgment then thought to be final
and executory.
PETITION to review the orders of the Court of First Instance of Bulacan, Br. 4.
Fernandez, J.
The facts are stated in the opinion of the Court.
     Porfirio C. Pineda for petitioners.
     Citizens Legal Assistance Office for private respondents.
FERNAN, C .J.:
On March 7, 1980, a gravel and sand truck driven by petitioner Jesus B. Pasion and
owned and operated by his co-petitioners, Spouses Carlos David and Teresita David,
hit Paulino Mananghaya in front of Mantrade Building, Epifanio de los Santos
Avenue, Makati, Metro Manila, resulting in the latter's death. Subsequently on May
25, 1980, Paulino's wife, Francisca Lagman Mananghaya, in her own behalf and as
6
natural guardian of her minor children Noel, Nolly and Joy, (hereinafter private In the event that this could not be done, defendants may, in the
respondents) filed before the then Court of First Instance (CFI) of Bulacan an action event of favorable judgment, go after plaintiffs' bond. 
for damages docketed as Civil Case No. 1136-B against petitioners. 
SO ORDERED. 
For failure to file their answer despite service of summons, petitioners as defendants
in said Civil Case No. 1136-B were declared in default. Private respondents as Baliuag, Bulacan, June 8,1982. 
plaintiffs were allowed to present their evidence ex-parte, after which a decision was
rendered on April 10, 1981 1 ordering petitioners to pay private respondents jointly OSCAR C
and severally the amount of P100,000.00 as moral damages; P80,000.00 as
exemplary damages; P100,000.00 as actual and compensatory damages; P10,000.00
as attorney's fees plus costs. A copy of said decision was received by petitioners on In their motion for reconsideration of the aforequoted Order, petitioners manifested
April 24, 1981.  that they are in accord with the first paragraph of said order but seek a
reconsideration of the second paragraph by setting the same aside and ordering the
return of the proceeds of P12,000.00 obtained from the sale of their personal
Petitioners filed a motion for new trial, which was denied in the lower court's order properties considering that private respondents have not posted a bond as a condition
of June 5, 1981 2 for having been filed one day late. In the same Order, the court precedent to the taking of said properties as the same was done pursuant to a decision
granted private respondents' prayer for the issuance of a writ of execution. A Writ of believed by the private respondents to be final and executory but which later turned
Execution 3 dated June 10, 1981 was correspondingly issued directing the Provincial out not to be so in view of the allowance of petitioners' motion for new trial by the
Sheriff of San Fernando, Pampanga to cause to be made of the goods and chattels of respondent lower court. 
petitioners the sums awarded to private respondents in respondent court's decision of
April 10, 1981. Consequently, some personal properties of the spouses David were
levied upon and sold at public auction, the proceeds of which amounting to Respondent court denied petitioners' aforesaid motion for reconsideration in its
P12,000.00 were subsequently delivered to private respondents.  second assailed Order dated December 1, 1982 on the ground that a new trial had
been ordered as early as February 8, 1982. 
Having received a copy of the Order of June 5, 1981 only on September 1, 1981,
petitioners filed on the same day a motion for reconsideration of the June 5, 1981 Hence this petition seeking to annul and set aside the two aforementioned Orders of
Order and a motion to quash the writ of execution dated June 10, 1981, calling the respondent judge, namely: the Order dated June 8, 1982 which required the return of
attention of the lower court to the fact that the 30th day of the reglementary period the properties of the petitioners levied upon in execution or, in the event that this
for the filing of an appeal fell on a Sunday so that the filing of the motion on the 31st could not be done, for petitioners to go after private respondents' bond in case of a
day was nevertheless still within the reglementary period for appeal. On February 8, favorable judgment; and the Order dated December 1, 1982 denying petitioners'
1982, the lower court issued an order 4 reconsidering its previous order of June 5, motion for reconsideration of the June 8, 1982 order. In addition, petitioners seek to
1981, granting petitioners' motion for new trial and recalling the writ of execution enjoin respondent court from further proceeding with Civil Case No. 1136-B except
dated June 10, 1981.  to issue a corresponding order setting aside the herein assailed Orders of June 8,
1982 and December 1, 1982 and ordering private respondents to return to Spouses
Carlos David and Teresita David the proceeds of the public auction sale of their
Resultantly, petitioners were allowed to file their Answer with Counterclaim for personal properties in the sum of P 12,000.00. 
damages against private respondents, who countered with a Motion to Dismiss
Counterclaim and Reply to Answer. The latter's motion to dismiss was denied by the
lower court. On June 5, 1982, petitioners filed a Motion for Restitution which was Petitioners submit that: 
resolved by respondent lower court in its assailed Order dated June 8, 1982, 5 reading
thus:  1. The Hon. Respondent Court acted without or in excess of its
jurisdiction and/or with grave abuse of its discretion amounting to
ORDER  lack of jurisdiction when it issued the Order of June 8,1982
directing that in the event return of the personal properties of
Petitioners Spouses could not be done by Private Respondents,
Defendants' properties levied in execution are hereby ordered to be Petitioners spouses may, in the event of a favorable judgment go
returned to them pending new trial. 
7
 after Private Respondents' bond, because there is no bond filed by
Private Respondents in said Civil Case No. 1136-B since said
personal properties of Petitioners Spouses were taken by the
Sheriff from them by virtue of a writ of execution (Annex G) and
said writ of execution was set aside and declared null and void by
Hon. Respondent Court in its Order of February 8,1982 (Annex
L).  The law is unmistakably clear that once a new trial is granted under aforesaid Rule,
2. The Hon. Respondent Court acted without or in excess of its
jurisdiction and/or with grave abuse of discretion amounting to
lack of jurisdiction when it issued its order of December 1, 1982
denying Petitioners' Motion for Reconsideration of Said Order of
June 8, 1982, for being contrary to law, established jurisprudence
on the matter and an outright denial of substantial justice to
Petitioners. 6
Petitioners maintain that the setting aside of the writ of execution by the lower court
naturally entitled them to recover from private respondents their personal properties
which were prematurely and improvidently levied upon on execution, or to the
reimbursement by private respondents of the proceeds of the auction sale in the sum
of P12,000.00 pending the hearing on the merits of Civil Case No. 1136-B. They
contend that in providing for an alternative in its assailed order in the event
restitution is not possible, the lower court unduly deprived them of their substantial
right without due process as there was no bond to speak of in the first place.  allowed to keep possession of the proceeds of the sale of petitioners' personal
On the other hand, private respondents submit that the lower court, under the
circumstances obtaining in this case, was merely exercising its sound judicial
discretion in not ordering restitution it appearing that the personal properties levied
upon on execution were already sold at public auction and the proceeds thereof given
to them, who, due to the untimely demise of the sole breadwinner in their family
were left orphaned and destitute. Furthermore, petitioners are barred by laches for
not taking their legal option to oppose the levy and public sale of their personal
properties which took place while their motion for new trial was still pending
resolution by the lower court and it was only on June 5, 1982 or almost a year after
the levy was made, that they moved for the return of the properties levied upon.
We rule for the petitioners. Although the Court is aware of private respondents' sad
plight, having suffered the untimely loss of the alleged sole breadwinner of the
family, nevertheless, the Court must go by the precepts of substantive as well as
procedural law in resolving the controversy at bar for to do otherwise would be
tantamount to pre-empting the lower court in its judgment in Civil Case No. 1136-B
wherein a new trial had been ordered as a result of the granting of petitioners' motion
for new trial therein. 
As provided under Section 5 of Rule 37 of the Revised Rules of Court: "If a new trial
be granted in accordance with the provisions of its rule, the original judgment shall
be vacated, and the action shall stand for trial de novo but the recorded evidence
taken upon the former trial so far as the same is material and competent to establish
the issues, shall be used at the new trial without retaking the same." 
the original judgment is vacated. The phrase "to vacate" applied to a judgment means
"to annul, to render void.7
As petitioners' motion for new trial was subsequently granted by the respondent
court, this resulted in the nullification of its judgment by default dated April 10, 1981
against petitioners in said civil case, including all the consequential effects thereof, to
wit: the Writ of Execution, the corresponding levy on the personal properties of
petitioners and the public auction sale. 
The Court thus finds validity and strength in petitioners' claim for restitution of the
P12,000.00 proceeds of the sale on execution of petitioners' personal properties
levied upon pursuant to a writ of execution which was subsequently recalled due to
the granting of a new trial in the subject civil case. Considering that the motion for
restitution was filed while the subject civil case was still undergoing trial, a stage
wherein the rights and obligations of the parties have not yet begin determined, it
would be unfairly enriching the private respondents, even temporarily, if they are
properties in the amount of P12,000.00. As Civil Case No. 1136-B then stood, there
has yet been no adjudication of rights and obligations between the parties.
Furthermore, there was never a plaintiff s bond to speak of in the first place against
which petitioners may proceed in case of a favorable judgment since the writ of
execution was issued pursuant to a judgment then thought to be final and executory. 
WHEREFORE, in view of the foregoing considerations, the second paragraph of the
Order of respondent court dated June 8, 1982 allowing petitioners as defendants
therein in case of a favorable judgment to go after the plaintiffs' bond if restitution
was not effected; and the Order of December 1, 1982 are hereby SET ASIDE.
Private respondents are hereby ORDERED to return to petitioners Spouses Carlos
David and Teresita David the proceeds of the public auction sale of their personal
properties in the sum of P12,000.00 
SO ORDERED.
8
G.R. No. 110801. December 8, 1995.*
MARIKINA VALLEY DEVELOPMENT CORPORATION, ISIDORO
LIAMZON, JR., SPS. BERNARDO AND DELIA ROSARIO, SPS. MANUEL
AND NORMA SANCHEZ, SPS. RUFINO AND MILAGROS JAVIER, SPS.
RODOLFO AND SONIA OCAMPO, SPS. LAZARO AND JULIETA SANTOS,
SPS. TEODORO AND ZENAIDA BAUTISTA, SPS. CHARLES AND MA.
CORAZON MILLER, SPS. EDGARDO AND CRISTINA VALENZUELA,
FRANCISCO LIAMZON, MARIETTA LIAMZON, ROMEO THADEUS
LIAMZON, MICHAEL RAYMOND LIAMZON, ROBERTO ANTONIO
LIAMZON, ROSABELLE THERESA LIAMZON, RONALDO ISIDORO
LIAMZON and RODRIGO JESUS LIAMZON, petitioners, vs. HON.
NAPOLEON R. FLOJO, Presiding Judge of Branch 2, RTC Manila; BASILIO
SYTANGCO, as representative of the heirs of JOSE REYES SYTANGCO; and
THE HON. COURT OF APPEALS, respondents.
Actions; Pleadings and Practice; Instances when a party aggrieved by a
decision of a trial court may move to set aside the decision and reconsideration
thereof granted.—The rule in our jurisdiction is that a party aggrieved by a decision
of a trial court may move to set aside the decision and reconsideration thereof may
be granted when (a) 
_____________
*
 EN BANC.
88
88  SUPREME COURT REPORTS ANNOTATED 
Marikina Valley Development Corporation vs. Flojo
the judgment had awarded “excessive damages”; (b) there was “insufficiency
of the evidence to justify the decision”; or (c) “the decision was against the law.”
Same; Same; Appeals; Motions for Reconsideration; Pro Forma Motions; A
motion for reconsideration that does not satisfy the requirements of Rule 37 of the
Rules of Court will be treated as pro forma intended merely to delay the proceedings
and will not stay or suspend the reglementary period to appeal.—A motion for
reconsideration, when sufficient in form and substance—that is, when it satisfies the
requirements of Rule 37 of the Rules of Court—interrupts the running of the period
to perfect an appeal. A motion for reconsideration that does not comply with those
requirements will, upon the other hand, be treated as pro formaintended merely to

9
delay the proceedings and as such, the motion will not stay or suspend the
reglementary period. The net result will be dismissal of the appeal for having been
unseasonably filed.
Same; Same; Same; Same; Same; The circumstance that a motion for
reconsideration deals with the same issues and arguments posed and resolved by the
trial court in its decision does not necessarily mean that the motion must be
characterized as pro forma.—It should, however, be noted that the circumstance that
a motion for reconsideration deals with the same issues and arguments posed and
resolved by the trial court in its decision does not necessarily mean that the motion
must be characterized as merely pro forma. More than two (2) decades ago, Mr.
Justice J.B.L. Reyes had occasion, in Guerra Enterprises Company, Inc. v. Court of
First Instance of Lanao del Sur, to point out that a pleader preparing a motion for
reconsideration must of necessity address the arguments made or accepted by the
trial court in its decision: “x x x. Among the ends to which a motion for
reconsideration is addressed, one is precisely to convince the court that its ruling is
erroneous and improper, contrary to the law or the evidence (Rule 37, Section 1,
subsection [c]); and in doing so, the movant has to dwell of necessity upon the issues
passed upon by the court. If a motion for reconsideration may not discuss these
issues, the consequence would be that after a decision is rendered, the losing party
would be confined to filing only motions for reopening and new trial. We find in the
Rules of Court no warrant for ruling to that effect, a ruling that would, in effect
eliminate subsection (c) of Section 1 of Rule 37.”
Same; Same; Same; Same; Same; A motion for reconsideration which, as it
were, has some flesh on its bones, may nevertheless be rendered pro forma where
the movant fails to make reference to the testimonial and documentary evidence on
record or the provisions of law
89
VOL. 251, DECEMBER 8, 1995  89  served by according the appellate court an effective opportunity to review the
Marikina Valley Development Corporation vs. Flojo
said to be contrary to the trial court’s conclusions—i.e., the movant is also
required to point succinctly why reconsideration is warranted.—A motion for
reconsideration which is not as starkly bare as in Crisostomo and in Villarica, but
which, as it were, has some flesh on its bones, may nevertheless be rendered pro
forma where the movant fails to make reference to the testimonial and documentary
evidence on record or the provisions of law said to be contrary to the trial court’s
conclusions. In other words, the movant is also required to point out
succinctly why reconsideration is warranted. In Luzon Stevedoring Company v.
Court of Industrial Relations, the Supreme Court declared that: “it is not enough that
a motion for reconsideration should state what part of the decision is contrary to
law or the evidence; it should also point out why it is so. Failure to explain why will
render the motion for reconsideration pro forma.”
Same; Same; Same; Same; Same; The rule that a pro forma motion for
reconsideration does not stop the period of appeal from “slipping away” reflects
both poetic and substantial justice.—It is important to note that the above case law
rests upon the principle that a motion for reconsideration which fails to comply with
the requirements of Sections 1 (c) and 2 of Rule 37 of the Rules of Court, and is
therefore pro forma merely, has no other purpose than to gain time. It is intended to
delay or impede the progress of proceedings and the rule that such motion for
reconsideration does not stop the period of appeal from “slipping away” reflects both
poetic and substantial justice.
Same; Same; Same; Same; Same; Where the circumstances of a case do not
show an intent on the part of the movant merely to delay the proceedings, the
Supreme Court has refused to characterize the motion as pro forma.—Where the
circumstances of a case do not show an intent on the part of the movant merely to
delay the proceedings, our Court has refused to characterize the motion as
simply pro forma. Thus, in the Guerra Enterprises case, the Court took note of the
fact that the motion for reconsideration had been filed within barely twelve (12) days
(the reglementary period was then thirty [30] days) after receipt by the counsel for
the movant party, which fact negated the suggestion that the motion had been used as
“a mere delaying tactic.”
Same; Same; Same; Same; Same; Because the doctrine relating to pro forma
motions for reconsideration impacts upon the reality and substance of the statutory
right of appeal, that doctrine should be applied reasonably rather than literally.—
We note finally that because the doctrine relating to pro forma motions for
reconsideration impacts upon the reality and substance of the statutory right of
appeal, that 
90
90  SUPREME COURT REPORTS ANNOTATED 
Marikina Valley Development Corporation vs. Flojo
doctrine should be applied reasonably, rather than literally. The right to appeal,
where it exists, is an important and valuable right. Public policy would be better
decision of the trial court on the merits, rather than by aborting the right to appeal by
a literal application of the procedural rule relating to pro formamotions for
reconsideration.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
     Eduardo B. Tampoc for petitioners.
     Mario S. Ingco for private respondents.
FELICIANO, J.:
Jose Reyes Sytangco instituted a complaint for reconveyance of a piece of land
situated along España Street, Manila, against petitioner Marikina Valley
Development Corporation ("Marikina Valley") and Milagros Liamzon. In his
complaint, Jose Reyes Sytangco alleged that he and his wife, Aurelia Liamzon-
10
Sytangco had entrusted some funds to Milagros Liamzon, sister-in-law of Aurelia, in
order to purchase the España Street property from its former owners. The Sytangco
spouses had years ago built their house on that parcel of land then leased from the
original owners with whom they negotiated for purchase of that land. Milagros
Liamzon, however, in alleged violation of the trust reposed upon her, purchased the
España Street property in her own name and had title to the same registered in her
name. Thereafter, she transferred title over that property to petitioner Marikina
Valley, a closed corporation owned by the Liamzon family.
In their answer, petitioner denied the allegations of Jose Reyes Sytangco and claimed
that Milagros Liamzon had purchased the España Street property by and for herself,
with funds coming from petitioner Marikina Valley. For her part, Milagros Liamzon
insisted, among other things, that the Reyes Sytangco spouses had waived in her
favor their right to buy the property in question.
During the trial in the court below, Jose Reyes Sytangco died and he was substituted
by his heirs, who are private respondents herein. After trial, the trial court ruled in
favor of private respondent heirs in a decision dated 11 October 1991. The trial court
directed petitioner Marikina Valley to execute a Deed of Conveyance covering the
property involved in favor of private respondents.
On 28 October 1991, Marikina Valley and the other petitioners — heirs of Milagros
Liamzon (Milagros having, in the meantime, passed away) — received a copy of the
decision of the trial court. Petitioners moved for reconsideration on 7 November
1991.
The Reyes Sytangco heirs opposed petitioners' motion for reconsideration upon the
ground that it was a pro forma one. The heirs contended that the allegations of
insufficiency of evidence were couched in very general terms, contrary to the
requirements of Section 2, Rule 37 of the Rules of Court.
On 21 November 1991, the trial court denied petitioners' motion for reconsideration
for lack of merit. The trial court said:
The defendant anchors his motion on the assertion that:
1. There is no sufficient evidence to show that the down payment
for the property came from the plaintiff;
2. That the money used for the property did not come from the
plaintiff, hence, no implied trust could have been created between
Milagros Liamzon and Aurelia Liamson;
3. That piercing the veil of corporate entity is not applicable to this
case.
After a perusal of the arguments posed in support of these grounds,
the court finds that these arguments had been discussed and
resolved in the decision. There being [no] other matter of
consequences asserted which has not been considered in the
decision, the Court resolves to deny the same.
WHEREFORE, the Motion for Reconsideration is DENIED for
lack of merit.1 (Emphasis supplied)
Petitioners received a copy of the above order on 22 November 1991. On 25
November 1991, they filed a notice of appeal with the trial court.
In the meantime, private respondent heirs moved for execution of the decision of 11
October 1991. They insisted that petitioners had failed to perfect an appeal within the
reglementary period.
In its order dated 25 November 1991, the trial court dismissed the notice of appeal
filed by petitioners for having been filed beyond the reglementary period to perfect
an appeal. The trial judge reasoned that petitioners' motion for reconsideration
was pro forma and hence did not stop the running of the reglementary period.
Thereupon, the trial judge granted private respondents' motions for execution.
Petitioners went to the Court of Appeals on certiorari and injunction. They denied
that their motion for reconsideration was merely pro forma and claimed that they
had filed their notice of appeal seasonably. They also challenged the validity of
subsequent orders of the trial court directing execution.
The Court of Appeals dismissed the petition, declaring that petitioners' motion for
reconsideration was indeed pro forma and, "therefore, clearly without merit." The
appellate court went on to say that:
[w]here a motion for reconsideration merely submits, reiterates,
repleads, repeats, or reaffirms the same arguments that had been
previously considered and resolved in the decision, it is pro forma.
The Court of Appeals concluded that petitioners' pro forma motion for
reconsideration had not stopped the running of the period to perfect an
appeal and that, accordingly, the judgment had become final and private
respondents were entitled to execution as a matter of right. Petitioners
sought reconsideration of the Court of Appeals' decision, without success.
11
In their present Petition for Review on Certiorari, petitioners aver once more that
their motion for reconsideration filed before the trial court was sufficient in form and
substance and was not pro forma. They reiterate that their motion had effectively
suspended the running of the reglementary period, and that their notice of appeal
filed three (3) days from receipt of the order denying their motion for reconsideration
had been filed well within the remaining period to perfect an appeal.
The rule in our jurisdiction is that a party aggrieved by a decision of a trial court may
move to set aside the decision and reconsideration thereof may be granted when (a)
the judgment had awarded "excessive damages;" (b) there was "insufficiency of the
evidence to justify the decision;" or (c) "the decision was against the law."2
A motion for reconsideration based on ground (b) or (c) above must
point out specifically the findings and conclusions of the judgment
which are not supported by the evidence or which are contrary to
law, making express reference to the testimonial or documentary
evidence or to the provisions of law alleged to be contrary to such
findings and conclusions. 3
A motion for reconsideration, when sufficient in form and substance — that is, when
it satisfies the requirements of Rule 37 of the Rules of Court — interrupts the
cunning of the period to perfect an appeal.4 A motion for reconsideration that does
not comply with those requirements will, upon the other hand, be treated as pro
forma intended merely to delay the proceedings and as such, the motion will not stay
or suspend the reglementary period.5The net result will be dismissal of the appeal for
having been unseasonably filed.
The question in every case is, therefore, whether a motion for reconsideration is
properly regarded as having satisfied the requirements, noted above, of Rule 37 of
the Rules of Court. As already pointed out, the Court of Appeals took the position
that where a motion for reconsideration merely "reiterates" or "repleads" the same
arguments which had been previously considered and resolved in the decision sought
to be reconsidered, the motion is a pro forma one. In taking this position, the
appellate court quoted at some length from a prior decision of this Court:
. . . Said the Supreme Court in "Dacanay v. Alvendia, et al.," 30
SCRA 31, to wit:
In Estrada v. Sto. Domingo, recently decided by this Court, we
once again called the attention of the bar and litigants to the
"principle already forged by this Court . . . that a motion for
reconsideration which has no other purpose than to gain time
is pro forma and does not stop the period of appeal from slipping
away." Mr. Justice Dizon pointed out in his concurring opinion that
"The motion aforesaid is pro forma on yet another ground, in
substance it was but a reiteration of reasons and arguments
previously set forth in respondent Sto. Domingo's memorandum
submitted to the trial court and which the latter had already
considered, weighed and resolved adversely to him when it
rendered its decision on the merits." And earlier in Lonaria v. De
Guzman, we held that "[T]he filing of the second motion on
January 22, 1963 did not suspend the running of the period, first,
because it was " pro forma based on grounds already existing at
the time of the first motion."6 (Emphasis partly in the original and
partly supplied)
It should, however, be noted that the circumstance that a motion for reconsideration
deals with the same issues and arguments posed and resolved by the trial court in its
decision does not necessarily mean that the motion must be characterized as
merely pro forma. More than two (2) decades ago, Mr. Justice J.B.L. Reyes had
occasion, in Guerra Enterprises Company, Inc. v. Court of First Instance of Lanao
del Sur,7 to point out that a pleader preparing a motion for reconsideration must of
necessity address the arguments made or accepted by the trial court in its decision:
. . . . Among the ends to which a motion for reconsideration is
addressed, one is precisely to convince the court that its ruling is
erroneous and improper, contrary to the law or the evidence (Rule
37, Section 1, subsection [c]); and in doing so, the movant has to
dwell of necessity upon the issues passed upon by the court. If a
motion for reconsideration may not discuss these issues, the
consequence would be that after a decision is rendered, the losing
party would be confined to filing only motions for reopening and
new trial. We find in the Rules of Court no warrant for ruling to
that effect, a ruling that would, in effect eliminate subsection (c) of
Section 1 of Rule 37.8 (Emphases supplied)
The movant is very often confined to the amplification or further discussion
of the same issues already passed upon by the trial court. Otherwise, his
remedy would not be a reconsideration of the decision, but a new trial or
some other remedy.9
The kinds of motions for reconsideration which have been regarded as merely pro
forma are illustrated by Crisostomo v. Court of Appeals,10 where a one sentence
motion for reconsideration, which read thus:
COMES NOW the petitioners-appellants in the above-entitled case
and to this Honorable Court respectfully move for reconsideration
12
 of the decision promulgated on November 8, 1966, copy of which
was received by the undersigned on November 9, 1966, on the
ground that the same is contrary to law and evidence. (Emphasis
supplied)
was considered a pro forma motion for total failure to specify the findings
or conclusions in the trial court's decision which were supposedly not
supported by evidence or were contrary to law. Similarly, in Villarica v.
Court of
Appeals, 11 a motion for reconsideration which no more than alleged the
following:
1. that the order is contrary to law; and
2. that the order is contrary to the facts of the case,
did not suspend the running of the period for appeal, being a pro
forma motion merely. These kinds of motion present no difficulty at all.
A motion for reconsideration which is not as starkly bare as in Crisostomo and
in Villarica, but which, as it were, has some flesh on its bones, may nevertheless be
rendered pro forma where the movant fails to make reference to the testimonial and
documentary evidence on record or the provisions of law said to be contrary to the
trial court's conclusions. In other words, the movant is also required to point out
succinctly why reconsideration is warranted. In Luzon Stevedoring Company v.
Court of Industrial Relations, 12 the Supreme Court declared that:
it is not enough that a motion for reconsideration should state what
part of the decision is contrary to law or the evidence; it should
also point out why it is so. Failure to explain why will render the
motion for reconsideration pro forma. (Emphasis supplied)
Where a substantial bonafide effort is made to explain where and why the
trial court should be regarded as having erred in its main decision, the fact
that the trial court thereafter found such argument unmeritorious or as
inadequate to warrant modification or reversal of the main decision,
does not, of course, mean that the motion for reconsideration should have
been regarded, or was properly regarded, as merely pro forma.
It is important to note that the above case law rests upon the principle that a motion
for reconsideration which fails to comply with the requirements of Sections 1 (c) and
2 of Rule 37 of the Rules of Court, and is therefore pro forma merely, has no other
purpose than to gain time. It is intended to delay or impede the progress of
proceedings and the rule that such motion for reconsideration does not stop the
period of appeal from "slipping away" reflects both poetic and substantial justice.
In Estrada, et al. v. Sto. Domingo, et al., 13 the Court underlined.
[T]he principle [previously] forged by this Court — that a
motion for reconsideration which has no other purpose than to
gain time is pro forma and does not stop the period of appeal from
slipping away. It is in recognition of this doctrine that we hold
that where a motion for reconsideration in an election case is taken
advantage of for purposes of delay to the prejudice of the adverse
party or where such motion forms part of a matrix delay, that
motion does not stop running of the five-day period for
appeal. 14(Emphasis supplied)
Where the circumstances of a case do not show an intent on the part of the movant
merely to delay the proceedings, our Court has refused to characterize the motion as
simply pro forma. Thus, in the Guerra Enterprises case, the Court took note of the
fact that the motion for reconsideration had been filed within barely twelve (12) days
(the reglementary period was then thirty [30] days) after receipt by the counsel for
the movant party, which fact negated the suggestion that the motion had been used as
"a mere delaying tactic." 15 Dacanay v. Alvendia, 16 on which the Court of Appeals
had relied, is not in fact in conflict with the cases we have above referred to.
In Dacanay, the motion for reconsideration was in effect a fourth motion for
reconsideration: the "reasons and arguments" set out in the motion for
reconsideration had on three previous occasions been presented to the trial court and
each time considered and rejected by the trial court. In Lonario v. De Guzman, 17 the
motion for reconsideration which the Court characterized as pro forma was in fact
a second motion for reconsideration based on grounds already existing at the time the
first motion for reconsideration was filed. Further, at the time of the filing of the
second motion, the period to appeal had already lapsed. This Court dismissed the
case for having been appealed beyond the reglementary period. In Samudio v.
Municipality of Gainza, Camarines Sur, 18 the Court had before it a "so-
called motion for new trial based exactly on the very ground alleged in [defendant's]
first motion for reconsideration dated October 17, 1952" and accordingly, held that
the motion for new trial did not suspend the period for perfecting an appeal "because
it [was] mere repetition of the [first] motion for reconsideration of October 17,
1952." 19 (Emphasis supplied)
We turn then to the application of the above standards to the motion for
reconsideration in the case at bar. The text of petitioners' motion for reconsideration
dated 7 November 1991 is quoted below:
(a) There [was] no sufficient evidence introduced to prove the
alleged fact that the down-payment for the property in question
13
 came from Jose Sytangco. Private transactions are presumed to be
fair and regular (citations omitted). The regularity of defendant
Liamzon's transaction with the Prietos for the sale of the property
implies that the consideration came from her and not from plaintiff.
This presumption cannot be rebutted by the bare testimony of
abiased witness;
(b) The money used to pay for the property not belonging to the
plaintiff, there could never be a trust between him and defendant
Liamzon. Even then, plaintiff merely claimed that what belong to
him was only the down-payment, not the total amount used to
purchase the property, that the defendant Liamzon was the one
paying the installments can be gleaned from the fact that while
plaintiff allegedly authorized defendant Liamzon to purchase the
property sometime in 1968, it was only in 1981 that he came to
know that the property was titled in the name of defendant
corporation. Plaintiff's (Jose Reyes Sytangco) total lack of
knowledge about the transactions regarding the property for 13
long years, meant that he had no contract with the Prietos, the
seller during this period. Assuming without admitting that the
down-payment belonged to plaintiff, he is only entitled to
reimbursement but not title to the property;
(c) Piercing the veil of corporate fiction applies only to cases
where the corporation was created for purposes of fraud, usually in
tax cases; fraud, however, being the exception rather than the rule
should be proven by convincing evidences. That defendant
Liamzon is a director of defendant Corporation is not indicative of
fraud. The money used to buy the property being advances from
defendant corporation, there is nothing wrong to have said property
be titled in the name of the corporation to offset said advances;
(d) It may be mentioned that the ejectment counterpart of this case
had already been decided with finality in favor of defendant
corporation. 20
In paragraph (a) of their motion, petitioners claimed that the evidence submitted was
insufficient to show that the downpayment for the purchase of the España Street
property had in fact come from private respondents' predecessor-in-interest Jose
Reyes Sytangco. In effect, petitioners here aver that the presumption of regularity of
private transactions carried out in the ordinary course of business had not been
overturned by the testimony of Jose Reyes Sytangco himself. This reflected
petitioners' appraisal of the trial court's conclusion that Jose and Aurelia Reyes
Sytangco had handed over to Milagros Liamzon the amount of P41,000.00 to
complete the downpayment of the Reyes Sytangco spouses on the España lot. The
trial court had not discussed the presumption of regularity of private transactions
invoked by petitioners.
In paragraph (b) of their motion, petitioners, building upon their paragraph (a),
argued that since the money used to pay the property did not belong to the plaintiff,
no constructive trust arose between Jose Reyes Sytangco and Milagros Liamzon.
Petitioners further argue that assuming that the money for the downpayment had
really come from the Reyes Sytangco spouses, the rest of the payments on the
España property had been made by Milagros Liamzon. Accordingly, they argue that
the Reyes Sytangco spouses would be entitled only to reimbursement of the
downpayment and not to reconveyance of the property itself. The trial court had not
addressed this argument in its decision; the trial judge had found Milagros Liamzon's
testimony concerning whose money had been used in the purchase of the lot as
"filled with contradictions" which seriously impaired her credibility. 21
The third argument of petitioners in their motion assailed the reliance of the trial
court upon the doctrine of piercing the corporate veil by asserting that that doctrine
was available only in cases where the corporation itself had been created for
purposes of fraud. Implicitly, petitioners argue that no evidence had been submitted
to show that Marikina Valley had been created precisely "for purposes of fraud." The
trial court had not touched on this argument. In paragraph (d) of their motion,
petitioners aver that the ejectment suit instituted by them had been decided in their
favor. The trial court's decision had not mentioned such an ejectment suit.
We are, therefore, unable to characterize the motion for reconsideration filed by
petitioners as simply pro forma. That motion for reconsideration, it may be noted,
had been filed no more than ten (10) days after receipt of the trial court's decision by
petitioner Marikina Valley.
It is scarcely necessary to add that our conclusion that petitioners' motion was not
pro forma, should not be regarded as implying however indirectly that that motion
was meritorious.
We note finally that because the doctrine relating to pro forma motions for
reconsideration impacts upon the reality and substance of the statutory right of
appeal, that doctrine should be applied reasonably, rather than literally. The right to
appeal, where it exists, is an important and valuable right. Public policy would be
better served by according the appellate court an effective opportunity to review the
decision of the trial court on the merits, rather than by aborting the right to appeal by
a literal application of the procedural rule relating to pro forma motions for
reconsideration.
14
WHEREFORE, for all the foregoing, (a) the Orders of the trial court dated 27
November 1991, 12 December 1991 and 22 January 1992 and (b) the Decision of the
Court of Appeals dated 8 December 1992, are hereby REVERSED and SET ASIDE.
The case is REMANDED to the trial court which is hereby DIRECTED to GIVE
DUE COURSE to petitioners' notice of appeal. No pronouncement as to costs.

SO ORDERED.

G.R. No. 140473.  January 28, 2003.*

MELBA MONCAL ENRIQUEZ, petitioner, vs. HON. COURT OF APPEALS
and VICTORINA TIGLE, respondents.
Civil Procedure; Pleadings and Practice; Appeal; Under the express mandate
of the Rules of Court, the appellant is duty-bound to submit his Memorandum on
appeal.—Rule 40, Section 7 (b) provides that, “it shall be the duty of the appellant to
submit a memorandum” and failure to do so “shall be a ground for dismissal of the
appeal.” The use of the word “shall” in a statute or rule expresses what is mandatory
and compulsory. Further, the Rule imposes upon an appellant the “duty” to submit
his memorandum. A duty is a “legal or moral obligation, mandatory act,
responsibility, charge, requirement, trust, chore, function, commission, debt, liability,
assignment, role, pledge, dictate, office, (and) engagement.” Thus, under the express
mandate of said Rule, the appellant is duty-bound to submit his memorandum on
appeal. Such submission is not a matter of discretion 
_______________
*
 SECOND DIVISION.
378
378  SUPREME COURT REPORTS ANNOTATED 
Enriquez vs. Court of Appeals
on his part. His failure to comply with this mandate or to perform said duty
will compel the RTC to dismiss his appeal.
Same; Same; Same; An appealing party must strictly comply with the
requisites laid down in the Rules of Court.—But it is equally true that an appeal

15
being a purely statutory right, an appealing party must strictly comply with the
requisites laid down in the Rules of Court. In other words, he who seeks to avail of
the right to appeal must play by the rules. This the petitioner failed to do when she
did not submit her memorandum of appeal in Civil Case No. 12044 as required by
Rule 40, Section 7 of the 1997 Rules of Civil Procedure. That she lost her case is not
the trial court’s fault but her own.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the resolution of the Court.
     Marcelo G. Flores for petitioner.
     S.J. Erames and Elam Law Offices for private respondent.
QUISUMBING, J.:
This is a petition to review the decision1 of the Court of Appeals dated July 20, 1999,
in CA-G.R. SP No. 50360, affirming the orders of the Regional Trial Court of
Dumaguete City, Branch 31, in Civil Case No. 12044. In its order2dated October 6,
1998, the RTC dismissed herein petitioner's appeal from the decision of the
Municipal Circuit Trial Court (MCTC) of Bayawan-Basay, Negros Oriental in Civil
Case No. 1062 for ejectment, and denied petitioner's motion for reconsideration in its
order3 dated October 30, 1998. Petitioner also assails the resolution4 of the appellate
court dated September 24, 1999, denying her motion for reconsideration.
The factual antecedents of this petition are as follows:
On February 29, 1996, herein respondent Victorina Tigle filed an action for unlawful
detainer against herein petitioner Melba Moncal Enriquez before the MCTC of
Bayawan-Basay, Negros Oriental. Tigle's complaint, which was docketed as Civil
Case No. 1062, alleged inter alia, that on December 14, 1994, she bought a parcel of
land known as Lot No. 377, located at Tinego, Bayawan, Negros Oriental from
Engracia Macaraya. Prior to the sale, Enriquez was staying at said lot by mere
tolerance of Macaraya. Enriquez was given an option to buy said lot but she refused
to exercise it. After the sale, Tigle then made demands on Enriquez to vacate the
property, but Enriquez adamantly refused.
In her Answer with Counterclaim filed before the MCTC, Enriquez averred that the
subject property is owned in common by the heirs of Felix Moncal and any sale by
Macaraya (one of the heirs of Felix Moncal) could only refer to Macaraya's
undivided 1/7 share of the lot. Since said 1/7 share of Macaraya is still unidentified,
the same cannot be a subject of ejectment pursuant to Article 4345 of the Civil Code.
In its decision dated June 2, 1997, the MCTC of Bayawan-Basay, decreed:
ACCORDINGLY, in the light of the foregoing considerations, this Court
hereby renders judgment in favor of the plaintiff to be in physical, actual,
and prior possession of the parcel of land described in Paragraph 3 of the
Complaint unlawfully occupied by defendant MELBA MONCAL
ENRIQUEZ, and plaintiff is entitled to the reliefs prayed for in the
Complaint as follows:
1. Declaring plaintiff VICTORINA TIGLE to be in actual, physical and
prior possession of the premises of the parcel of land mentioned in
Paragraph 3 of the Complaint consisting of ONE HUNDRED SEVENTY
NINE (179) square meters, more or less, or SUB-LOT NO. 2-A, of LOT
NO. 2, mentioned in Par. 5, Page 2 of EXH. "B";
2. Ordering defendant MELBA MONCAL ENRIQUEZ, her agents,
representatives, and all other persons acting in her behalf to immediately
vacate the premises of the parcel of land mentioned in Par. 5, Page 2, EXH.
"B", otherwise known as SUB-LOT NO. 2-A of LOT NO. 2;
3. To remove and/or demolish all workings, constructions and
improvements illegally built and/or constructed in the parcel of land
mentioned in Par. 5, Page 2, of EXH. "B", otherwise known as SUB-LOT
NO. 2-A of LOT NO. 2;
4. Ordering defendant MELBA MONCAL ENRIQUEZ to pay to plaintiff
the sum of P3,000.00 by way of litigation expenses;
5. Ordering the defendant MELBA MONCAL ENRIQUEZ to pay to
plaintiff the sum of P10,000.00 by way of attorney's fees;
6. However, for failure to allege and pray for reasonable compensation and
fair rental value for the use and occupation of the premises of the parcel of
land mentioned in land mentioned in Par. 5, Page 2, of EXH. "B", known as
SUB-LOT NO. 2-A of LOT NO. 2, the same is deemed waived;
7. On the other hand, moral and exemplary damages are not allowed in
ejectment cases;
8. Any allegations by way of Counterclaim are dismissed for lack of
sufficient basis.
SO ORDERED.6
16
Enriquez seasonably appealed to the RTC of Dumaguete City. In its order of
February 16, 1998, the RTC directed respective counsel for the parties to "submit
within fifteen (15) days from receipt of this order their respective memoranda and/or
briefs."7 The RTC stated that upon expiration of the period to submit memoranda, it
"shall decide the case on the basis of the entire record of the proceedings in the court
of origin and/or such brief(s) as may have been filed."8
The counsel for Enriquez failed to comply with the order to submit a
memorandum. On October 6, 1998, the RTC issued the following order:
For failure of defendant-appellant to file and submit a memorandum within
the reglementary period as required by Rule 40, Section 7 (b),9 her appeal is
dismissed.
Upon finality of this order, the Clerk of Court is hereby directed to remand
the records of this case to the lower court for execution of judgment.
SO ORDERED.10
Enriquez then moved for reconsideration, manifesting that she was adopting her
position paper in the MCTC as her memorandum.
On October 30, 1998, the RTC denied Enriquez's motion on the ground that "the
records does (sic) not show of such manifestation."11
Enriquez then elevated the matter to the Court of Appeals, which docketed her
petition as CA-G.R. SP No. 50360. The appellate court found the primary issue to be
procedural in character, namely: the correctness of the order of the RTC dismissing
herein petitioner's appeal for failure to file her memorandum on appeal.
On July 20, 1999, the appellate court decided CA-G.R. SP No. 50360 as follows:
WHEREFORE, premises considered, the instant petition is hereby
DISMISSED for lack of merit.
SO ORDERED.12
The appellate court held that "under Section 7, Rule 40 of the 1997 Rules of Civil
Procedure (the filing of a memorandum) is a mandatory obligation on the part of the
appellant, such that, the failure to do so warrants a concomitant dismissal of the
appeal."13
Enriquez moved for reconsideration of the appellate court's decision, but this was
denied by the Court of Appeals in its order of September 24, 1999.14
Hence, the instant petition before us. Petitioner raises the following issues:
1. HAS THE HONORABLE COURT OF APPEALS COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF
JURISDICTION OR ARE ITS DECISION (ANNEX "N") AND
RESOLUTION (ANNEX "P") APPEALED FROM NOT IN ACCORD
WITH THE RULES AND APPLICABLE DECISIONS OF THIS
HONORABLE SUPREME COURT?
2. AND, THAT IN ORDER TO SERVE THE ENDS OF JUSTICE AND
PREVENT MISCARRIAGE OF JUSTICE, SHOULD THE ORDER
DATED OCTOBER 6, 1998 (ANNEX "I"); ORDER DATED OCTOBER
30, 1998 (ANNEX "K"); THE DECISION (ANNEX "N") AND
RESOLUTION (ANNEX "P"), BE ALL PLEASE SET ASIDE AND THE
COMPLAINT FILED IN THE MCTC OF BAYAWAN-BASAY
(ANNEXES "C" TO "C-3") BE PLEASE ORDERED TERSELY
DISMISSED WITH COSTS AGAINST THE RESPONDENT AND THE
RESPONDENT BE ORDERED TO PAY TO THE PETITIONER THE
MONETARY COUNTERCLAIMS INTERPOSED IN THE ANSWER
WITH COUNTERCLAIM (ANNEXES "D" TO "D-7")?15
Stated simply, the sole issue for our resolution is: Did the Court of Appeals commit a
reversible error in sustaining the order of the RTC which dismissed petitioner's
appeal for failure to file memorandum on appeal?
Petitioner faults the appellate court with grave error of law when it failed to rule that
the RTC should have decided her appeal before it in accordance with Rule 40,
Section 7 (c)16 of the 1997 Rules of Civil Procedure. She avers that the appellate
court erred when it did not rule that the RTC should have decided the case, based on
the record of the MCTC proceedings, instead of sustaining the order to dismiss for
failure to file memorandum.
Private respondent counters that an appellant's failure to file the memorandum
required under Rule 40, Section 7, compelled the RTC to dismiss the case. She
points out that an appealed case cannot be decided on the merits without an
appellant's memorandum, as the assignment of errors by the appellant is vital to the
decision of the case. This is different from the situation where it is the appellee who
fails to file his memorandum, as in this instance, the RTC may decide the case based
on the records of the proceedings in the court of origin and the appellant's
memorandum. Moreover, the failure to file a memorandum by the appellant
manifests lack of interest to pursue her appeal.
17
 Rule 40, Section 7 of the 1997 Rules of Civil Procedure is a new provision.
Said section is based on Section 21 (c) and (d)17 of the Interim Rules
Relative to the Implementation of the Judiciary Reorganization Act of 1980
(B.P. Blg. 129) with modifications. These include the following changes:
(a) the appellant is required to submit a memorandum discussing the errors
imputed to the lower court within fifteen (15) days from notice, and the
appellee is given the same period counted from receipt of the appellant's
memorandum to file his memorandum; (b) the failure of the appellant to file
a memorandum is a ground for the dismissal of the appeal.18
In sum, we find that the Court of Appeals committed no reversible error of law when
it upheld (a) the order of the RTC dismissing herein petitioner's appeal in Civil Case
No. 12044, and (b) its order denying reconsideration.
WHEREFORE, the instant petition is DENIED, and the assailed decision and
resolution of the Court of Appeals in CA-G.R. SP No. 50360 are AFFIRMED.
SO ORDERED.

Rule 40, Section 7 (b) provides that, "it shall be the duty of the appellant to
submit a memorandum" and failure to do so "shall be a ground for dismissal
of the appeal." The use of the word "shall" in a statute or rule expresses
what is mandatory and compulsory.19 Further, the Rule imposes upon an
appellant the "duty" to submit his memorandum. A duty is a "legal or moral
obligation, mandatory act, responsibility, charge, requirement, trust, chore,
function, commission, debt, liability, assignment, role, pledge, dictate,
office, (and) engagement."20 Thus, under the express mandate of said Rule,
the appellant is duty-bound to submit his memorandum on appeal. Such
submission is not a matter of discretion on his part. His failure to comply
with this mandate or to perform said duty will compel the RTC to dismiss
his appeal.

In rules of procedure, an act which is jurisdictional, or of the essence of the

proceedings, or is prescribed for the protection or benefit of the party affected is
mandatory.21 As private respondent points out, in appeals from inferior courts to the
RTC, the appellant's brief is mandatory for the assignment of errors is vital to the
decision of the appeal on the merits. This is because on appeal only errors
specifically assigned and properly argued in the brief or memorandum will be
considered, except those affecting jurisdiction over the subject matter as well as plain
and clerical errors.22 Otherwise stated, an appellate court has no power to resolve an
unassigned error, which does not affect the court's jurisdiction over the subject
matter, save for a plain or clerical error.23

It is true that the Rules should be interpreted so as to give litigants ample opportunity
to prove their respective claims and that a possible denial of substantial justice due to
legal technicalities should be avoided.24 But it is equally true that an appeal being a
purely statutory right, an appealing party must strictly comply with the requisites laid
down in the Rules of Court.25 In other words, he who seeks to avail of the right to
appeal must play by the rules.26 This the petitioner failed to do when she did not
submit her memorandum of appeal in Civil Case No. 12044 as required by Rule 40,
Section 7 of the 1997 Rules of Civil Procedure. That she lost her case is not the trial
court's fault but her own.

18

G.R. No. 139303. August 25, 2005.*
CIPRIANO ENRIQUEZ, RAYMUNDO ENRIQUEZ, CONCEPCION
ENRIQUEZ, assisted by her husband MATIAS QUITANES, TOMAS
ENRIQUEZ, LUIS DIAZ, CESAR DIAZ, MANUEL DIAZ, DOMINGO
ENRIQUEZ, ELPIDIO ENRIQUEZ, FILIPINA ENRIQUEZ, CASIMIRA
DIZON, SATURNINO DIZON, JOSE RAMOS, AMADO MISLANG,
ANTONIO QUITANEG, VILLAMOR QUITANEG, JIMMY CLAVO, OSCAR
LABORCE, SEVILLA PIZARRO, ANGELITA PIZZARO, ISIDRO RICO,
PIO FAMISAN, PANTALEON ABILLE, BEINVENIDO CORUM, MARTINA
HISOLE, ERNA D. ENRIQUEZ, assisted by her husband RITCHIE FLAUTA,
and IGNACIO ENRIQUEZ, JR., petitioners, vs. MAXIMO ENRIQUEZ (now
deceased), substituted by CARMEN AGANA, IGMIDIO ENRIQUEZ,
CONCEPCION ENRIQUEZ, CIPRIANO ENRIQUEZ, DIONISIO
ENRIQUEZ, MAXIMO ENRIQUEZ, CLEOFE ENRIQUEZ, TOMAS
ENRIQUEZ, RAYMUNDO ENRIQUEZ and NICOLAS ENRIQUEZ,
respondents.
Appeals; Docket Fees; Pleadings and Practice; While prior to the effectivity
of the 1997 Rules of Civil Procedure, as amended, payment of appellate court docket
fee was not a prerequisite for the perfection of an appeal, now the 1997 Rules of
Civil Procedure require that the appellate docket and other lawful fees must be paid
within the same for taking an appeal.—Prior to the effectivity of the 1997 Rules of
Civil Procedure, as amended, payment of appellate court docket fee is not a
prerequisite for the perfection of an appeal. In Santos vs. Court of Appeals, this Court
held that although an appeal fee is required to be paid in case of an appeal taken from
the Municipal Trial Court to the Regional Trial Court, it is not a prerequisite for the
perfection of an appeal under Sections 20 and 23 of the Interim Rules and Guidelines
issued by this Court on January 11, 1983 implementing the Judiciary Reorganization
Act of 1981 (B.P. Blg. 129). Under these sections, there are only two requirements
for the 
_______________
*
 THIRD DIVISION.
78
78  SUPREME COURT REPORTS ANNOTATED 
Enriquez vs. Enriquez
perfection of an appeal, to wit: (a) the filing with the trial court of a notice of
appeal within the reglementary period; and (b) the expiration of the last day to appeal
by any party. However, the 1997 Rules of Civil Procedure, as amended, which took
effect on July 1, 1997, now require that appellate docket and other lawful fees must
be paid within the same period for taking an appeal. This is clear from the opening
sentence of Section 4, Rule 41 of the same Rules that, “(W)ithin the period for taking
an appeal, the appellant shallpay to the clerk of the court which rendered the
judgment or final order appealed from, the full amount of the appellate court docket
and other lawful fees.”
Same; Same; Same; Statutory Construction; The term “shall” is a word of
command, and one which has always or which must be given a compulsory meaning,
and it is generally imperative or mandatory; Every part of the statute must be
interpreted with reference to the context, i.e., that every party of the statute must be
interpreted together with other parts, and kept subservient to the general intent of
the whole enactment.—The use of the word “shall” underscores the mandatory
character of the Rule. The term “shall” is a word of command, and one which has
always or which must be given a compulsory meaning, and it is generally imperative
or mandatory. Petitioners cannot give a different interpretation to the Rule and insist
that payment of docket fee shall be made only upon their receipt of a notice from the
trial court to pay. For it is a rule in statutory construction that every part of the statute
must be interpreted with reference to the context, i.e., that every part of the statute
must be interpreted together with the other parts, and kept subservient to the general
intent of the whole enactment. Indeed, petitioners cannot deviate from the Rule.
Same; Same; Same; Payment of docket fee within the prescribed period is
mandatory for the perfection of an appeal.—Under Rule 41 of the same Rules, an
appeal to the Court of Appeals from a case decided by the RTC in the exercise of the
latter’s original jurisdiction, shall be taken within fifteen (15) days from the notice of
judgment or final order appealed from. Such appeal is made by filing a notice thereof
with the court that rendered the judgment or final order and by serving a copy of that
notice upon the adverse party. Furthermore, within this same period, appellant shall
19
pay to the clerk of court which rendered the judgment or final order appealed from,
the full amount of the appellate court docket and other lawful  counsel. Verily, to grant their petition would be putting a premium on his ignorance
79
VOL. 468, AUGUST 25, 2005  79  keep abreast of legal developments and prevailing laws, rules and legal principles,
Enriquez vs. Enriquez
fees. The payment of docket fee within this period is mandatory for the
perfection of appeal. Otherwise, the appellate court would not be able to act on the
subject matter of the action, and the decision sought to be appealed from becomes
final and executory. Time and again, this Court has consistently held that payment of
docket fee within the prescribed period is mandatory for the perfection of an appeal.
Without such payment, the appellate court does not acquire jurisdiction over the
subject matter of the action and the decision sought to be appealed from becomes
final and executory.
Same; Same; Same; Appeal is not a right but a statutory privilege, thus, an
appeal must be made strictly in accordance with the provision set by law.—
Petitioners argue that the Appellate Court, in issuing the assailed Resolutions, gave
premium to technicalities rather than substance and disregarded the merits of the
petition. They ask for a liberal construction of the Rules. Appeal is not a right but a
statutory privilege, thus, appeal must be made strictly in accordance with the
provision set by law. The requirement of the law under Section 4, Rule 41 is clear.
The payment of appellate docket fee is not a mere technicality of law or procedure
but an essential requirement for the perfection of an appeal.
Same; Same; Same; Procedural Rules and Technicalities; Concomitant to a
liberal interpretation of the rules of procedure should be an effort on the part of the
party invoking liberality to adequately explain his failure to abide by the rules.—
This Court has consistently ruled that litigation is not a game of technicalities and
that every case must be prosecuted in accordance with the prescribed procedure so
that issues may be properly presented and justly resolved. The rules of procedure
must be faithfully followed except only when, for persuasive and weighting reasons,
they may be relaxed to relieve a litigant of an injustice commensurate with his failure
to comply within the prescribed procedure. Concomitant to a liberal interpretation
of the rules of procedure should be an effort on the part of the party invoking
liberality to adequately explain his failure to abide by the rules. Anyone seeking
exemption from the application of the Rule has the burden of proving that
exceptionally meritorious instances exist which warrant such departure.
Same; Same; Same; Same; Attorneys; To grant the petition, relaxing the
mandatory rule on the payment of docket fee would be putting a premium on
counsel’s ignorance or lack of knowledge of the
80
80  SUPREME COURT REPORTS ANNOTATED 
Enriquez vs. Enriquez
existing Rules.—In the present case, petitioners failed to establish any
sufficient and satisfactory reason to warrant a relaxation of the mandatory rule on the
payment of appellate court docket fee. Actually, the payment of the required docket
fee was late because of the erroneous interpretation of the Rule by petitioners’
or lack of knowledge of existing Rules. He should be reminded that it is his duty to
otherwise his clients will be prejudiced, as in this case.
PETITION for review on certiorari of the resolutions of the Court of Appeals.
The facts are stated in the opinion of the Court.
     Rebeck Espiritu & Associates Law Office for petitioner.
     Saturnino Bactad for respondent.
SANDOVAL-GUTIERREZ, J.:
Assailed in the instant petition for review on certiorari are the Resolutions dated
February 3, 1999 and July 7, 1999 issued by the Court of Appeals in CA-G.R. CV
UDK-7011 dismissing the appeal of petitioners for their failure to pay the appellate
court docket fee.
On November 17, 1988, Maximo Enriquez, later substituted by his heirs (now
respondents), filed with the Regional Trial Court (RTC), Branch 71 of Iba, Zambales
a complaint for partition against petitioners, docketed as Civil Case No. RTC-568-1.
The complaint involves a parcel of land situated at Amungan, Iba, same province,
covered by TCT No. T-28593, with an area of 44,984 square meters. He alleged that
he owns 10/18 undivided portion of the property, 9/18 by purchase and 1/18 by
inheritance; and that petitioners have been residing in the premises without his
knowledge and consent, thereby depriving him of his undivided share of the
property.
Petitioners, in their answer, averred that Cipriano Enriquez, one of the petitioners,
owns ½ of the property, while the others are in possession of the other areas with his
knowledge and consent.
On June 4, 1998, the RTC rendered a Decision ordering the petitioners to vacate the
property and to surrender possession thereof to respondents.
A copy of the Decision was received by counsel for petitioners on June 22, 1998. On
July 3, 1998, they filed a Notice of Appeal with the RTC. It was approved on July 7,
1998. 
On February 3, 1999, the Court of Appeals dismissed the appeal of petitioners for
their failure to pay the appellate court docket fee, thus:
20
"For failure to pay docket fee, the appeal is deemed ABANDONED and
DISMISSED, pursuant to Section 1(c), Rule 50, Revised Rules of Court."
Petitioners filed a motion for reconsideration but it was denied by the Appellate
Court in a Resolution dated July 7, 1999, thus:
"Per copy of the official receipt attached to appellants’ motion for reconsideration,
the docket fee was paid on November 4, 1998 or 4 months after the notice of appeal
was filed on July 3, 1998.
Consequently, appellants’ motion for reconsideration is hereby denied."
In the instant petition for review, petitioners raise the following errors allegedly
committed by the Appellate Court:  maintain that the trial court must first send them a notice to pay the appellate court
"I. The respondent Court of Appeals seriously erred in considering petitioners’
appeal as deemed abandoned and dismissed for alleged failure of petitioners to pay
docket fee.
II. the respondent Court of Appeals gravely erred in denying petitioners’ motion for
reconsideration of the resolution considering petitioners’ appeal as deemed
abandoned and dismissed on the ground that the docket fee was paid on November 4,
1998, or four (4) months after the notice of appeal was filed on July 3, 1998.
III. the respondent Court of Appeals in issuing the aforesaid resolutions gave
premium on technicalities rather on substance and substantial justice and disregarded
the merits of petitioners’ case."
In sum, the issue is whether the Court of Appeals correctly dismissed the petition for
failure of the petitioners to pay appellate court docket fee. 
In dismissing petitioners’ appeal, the Court of Appeals cited Section 1(c), Rule 50 of
the Revised Rules of Court which provides:
"Section 1. Grounds for dismissal of appeal. – An appeal may be dismissed by the
Court of Appeals, on its own motion or on that of the appellee, on the following
grounds:  fees."
xxx
(c) Failure of the appellant to pay the docket and other lawful fees as provided in
Section 4 of Rule 41." 
Petitioners admit that the governing Rule on their payment of appellate court docket
fee is Section 4, Rule 41 of the 1997 Rules of Civil Procedure, as amended, which
provides: 
"Section 4. Appellate court docket and other lawful fees. – Within the period for
taking an appeal, the appellant shall pay to the clerk of the court which rendered the
judgment or final order appealed from, the full amount of the appellate court docket
and other lawful fees. Proof of payment of said fees shall be transmitted to the
appellate court together with the original record of the record or the record on
appeal."
Underscoring the sentence "Proof of payment of said fees shall be transmitted to the
appellate court together with the original record or the record on appeal," petitioners
docket fee and other lawful fees within the period for taking an appeal. Hence, they
waited for the notice for them to pay the appellate court docket fee. When they did
not receive any, they paid the docket fee to the trial court. Consequently, they cannot
be faulted if they paid the appellate court docket fee four (4) months after their
Notice of Appeal was approved on July 7, 1998.
Prior to the effectivity of the 1997 Rules of Civil Procedure, as amended, payment of
appellate court docket fee is not a prerequisite for the perfection of an appeal.
In Santos vs. Court of Appeals,1 this Court held that although an appeal fee is
required to be paid in case of an appeal taken from the Municipal Trial Court to the
Regional Trial Court, it is not a prerequisite for the perfection of an appeal under
Sections 202 and 233 of the Interim Rules and Guidelines issued by this Court on
January 11, 1983 implementing the Judiciary Reorganization Act of 1981 (B.P. Blg.
129). Under these sections, there are only two requirements for the perfection of an
appeal, to wit: (a) the filing with the trial court of a notice of appeal within the
reglementary period; and (b) the expiration of the last day to appeal by any party. 
However, the 1997 Rules of Civil Procedure, as amended, which took effect on July
1, 1997, now require that appellate docket and other lawful fees must be paid within
the same period for taking an appeal. This is clear from the opening sentence of
Section 4, Rule 41 of the same Rules that, "(W)ithin the period for taking an appeal,
the appellant shall pay to the clerk of the court which rendered the judgment or final
order appealed from, the full amount of the appellate court docket and other lawful
 
The use of the word "shall" underscores the mandatory character of the Rule. The
term "shall" is a word of command, and one which has always or which must be
given a compulsory meaning, and it is generally imperative or
mandatory.4 Petitioners cannot give a different interpretation to the Rule and insist
that payment of docket fee shall be made only upon their receipt of a notice from the
21
trial court to pay. For it is a rule in statutory construction that every part of the statute
must be interpreted with reference to the context, i.e., that every part of the statute
must be interpreted together with the other parts, and kept subservient to the general
intent of the whole enactment.5 Indeed, petitioners cannot deviate from the Rule.  exceptionally meritorious instances exist which warrant such departure. 11
Also under Rule 41 of the same Rules, an appeal to the Court of Appeals from a case
decided by the RTC in the exercise of the latter’s original jurisdiction, shall be taken
within fifteen (15) days from the notice of judgment or final order appealed from.
Such appeal is made by filing a notice thereof with the court that rendered the
judgment or final order and by serving a copy of that notice upon the adverse party.
Furthermore, within this same period, appellant shall pay to the clerk of court which
rendered the judgment or final order appealed from, the full amount of the appellate
court docket and other lawful fees. The payment of docket fee within this period is
mandatory for the perfection of appeal. Otherwise, the appellate court would not be
able to act on the subject matter of the action, and the decision sought to be appealed
from becomes final and executory.6 
Time and again, this Court has consistently held that payment of docket fee within
the prescribed period is mandatory for the perfection of an appeal. Without such
payment, the appellate court does not acquire jurisdiction over the subject matter of
the action and the decision sought to be appealed from becomes final and executory. 7 
Petitioners argue that the Appellate Court, in issuing the assailed Resolutions, gave
premium to technicalities rather than substance and disregarded the merits of the
petition. They ask for a liberal construction of the Rules.
Appeal is not a right but a statutory privilege, thus, appeal must be made strictly in
accordance with the provision set by law. 
The requirement of the law under Section 4, Rule 41 is clear. The payment of
appellate docket fee is not a mere technicality of law or procedure but an essential
requirement for the perfection of an appeal.8  DOMINGO NEYPES, LUZ FAUSTINO, ROGELIO FAUSTINO, LOLITO
The payment of the docket fee within the period is a condition sine qua non for the
perfection of an appeal. Contrary to petitioners’ submission, the payment of the
appellate court docket and other lawful fees is not a mere technicality of law or
procedure. It is an essential requirement, without which the decision or final order
appealed from would become final and executory as if no appeal was filed at all.9  Roxas, Oriental Mindoro, respondents.
This Court has consistently ruled that litigation is not a game of technicalities and
that every case must be prosecuted in accordance with the prescribed procedure so
that issues may be properly presented and justly resolved. The rules of procedure
must be faithfully followed except only when, for persuasive and weighting reasons,
they may be relaxed to relieve a litigant of an injustice commensurate with his failure
to comply within the prescribed procedure. Concomitant to a liberal interpretation
of the rules of procedure should be an effort on the part of the party invoking
liberality to adequately explain his failure to abide by the rules.10 Anyone seeking
exemption from the application of the Rule has the burden of proving that
 
In the present case, petitioners failed to establish any sufficient and satisfactory
reason to warrant a relaxation of the mandatory rule on the payment of appellate
court docket fee. Actually, the payment of the required docket fee was late because
of the erroneous interpretation of the Rule by petitioners’ counsel. Verily, to grant
their petition would be putting a premium on his ignorance or lack of knowledge of
existing Rules. He should be reminded that it is his duty to keep abreast of legal
developments and prevailing laws, rules and legal principles,12 otherwise his clients
will be prejudiced, as in this case.
In fine, the Court of Appeals did not err in dismissing petitioners’ appeal. 
WHEREFORE, the instant petition for review on certiorari is DENIED. Costs
against petitioners.
SO ORDERED.
G.R. No. 141524. September 14, 2005.*
VICTORIANO, JACOB OBANIA AND DOMINGO CABACUNGAN,
petitioners, vs. HON. COURT OF APPEALS, HEIRS OF BERNARDO DEL
MUNDO, namely: FE, CORAZON, JOSEFA, SALVADOR and CARMEN, all
surnamed DEL MUNDO, LAND BANK OF THE PHILIPPINES AND HON.
ANTONIO N. ROSALES, Presiding Judge, Branch 43, Regional Trial Court,
Remedial Law; Appeals; The right to appeal is neither a natural right nor a
part of due process; It is merely a statutory privilege and may be exercised only in
the manner and in accordance with the provisions of law.—First and foremost, the
right to appeal is neither a natural right nor a part of due process. It is merely a
statutory privilege and may be exercised only in the manner and in accordance with
the provisions of law. Thus, one who seeks to avail of the right to appeal must
22
comply with the requirements of the Rules. Failure to do so often leads to the loss of
the right to appeal. The period to appeal is fixed by both statute and procedural rules.
Same; Same; An appeal should be taken within 15 days from the notice of
judgment or final order appealed from.—Based on the foregoing, an appeal should
be taken within 15 days from the notice of judgment or final order appealed from. A
final judgment or order is one that finally disposes of a case, leaving nothing more
for the  petitioners to declare the respondent heirs, the Bureau of Lands and the Bureau of
_______________
*
 EN BANC.
 
634
 
634 SUPREME COURT REPORTS ANNOTATED
Neypes vs. Court of Appeals
court to do with respect to it. It is an adjudication on the merits which,
considering the evidence presented at the trial, declares categorically what the rights
and obligations of the parties are; or it may be an order or judgment that dismisses an
action.
Same; Same; Court deems it practical to allow a fresh period of 15 days
within which to file the notice of appeal in the Regional Trial Court, counted from
receipt of the order dismissing a motion for a new trial or motion for
reconsideration to standardize the appeal periods provided in the Rules.—To
standardize the appeal periods provided in the Rules and to afford litigants fair
opportunity to appeal their cases, the Court deems it practical to allow a fresh period
of 15 days within which to file the notice of appeal in the Regional Trial Court,
counted from receipt of the order dismissing a motion for a new trial or motion for
reconsideration.
PETITION for review on certiorari of the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
     Romualdo M. Jubay for petitioners.
     Miguel M. Gonzales, Rosemarie M. Osoteo and Antonio M. Chua for
respondent Land Bank of the Philippines.
     Jose Rico P. Domingo for private respondents.
CORONA, J.:
Petitioners Domingo Neypes, Luz Faustino, Rogelio Faustino, Lolito Victoriano,
Jacob Obania and Domingo Cabacungan filed an action for annulment of judgment
and titles of land and/or reconveyance and/or reversion with preliminary injunction
before the Regional Trial Court, Branch 43, of Roxas, Oriental Mindoro, against the
Bureau of Forest Development, Bureau of Lands, Land Bank of the Philippines and
the heirs of Bernardo del Mundo, namely, Fe, Corazon, Josefa, Salvador and
Carmen.
In the course of the proceedings, the parties (both petitioners and respondents) filed
various motions with the trial court. Among these were: (1) the motion filed by
Forest Development in default and (2) the motions to dismiss filed by the respondent
heirs and the Land Bank of the Philippines, respectively.
In an order dated May 16, 1997, the trial court, presided by public respondent Judge
Antonio N. Rosales, resolved the foregoing motions as follows: (1) the petitioners’
motion to declare respondents Bureau of Lands and Bureau of Forest Development
in default was granted for their failure to file an answer, but denied as against the
respondent heirs of del Mundo because the substituted service of summons on them
was improper; (2) the Land Bank’s motion to dismiss for lack of cause of action was
denied because there were hypothetical admissions and matters that could be
determined only after trial, and (3) the motion to dismiss filed by respondent heirs of
del Mundo, based on prescription, was also denied because there were factual
matters that could be determined only after trial.1
The respondent heirs filed a motion for reconsideration of the order denying their
motion to dismiss on the ground that the trial court could very well resolve the issue
of prescription from the bare allegations of the complaint itself without waiting for
the trial proper.
In an order2 dated February 12, 1998, the trial court dismissed petitioners’ complaint
on the ground that the action had already prescribed. Petitioners allegedly received a
copy of the order of dismissal on March 3, 1998 and, on the 15th day thereafter or on
March 18, 1998, filed a motion for reconsideration. On July 1, 1998, the trial court
issued another order dismissing the motion for reconsideration 3 which petitioners
received on July 22, 1998. Five days later, on July 27, 1998, petitioners filed a notice
of appeal4 and paid the appeal fees on August 3, 1998.
On August 4, 1998, the court a quo denied the notice of appeal, holding that it was
filed eight days late.5 This was received by petitioners on July 31, 1998. Petitioners
filed a motion for reconsideration but this too was denied in an order dated
September 3, 1998.6
Via a petition for certiorari and mandamus under Rule 65 of the 1997 Rules of Civil
Procedure, petitioners assailed the dismissal of the notice of appeal before the Court
of Appeals.
23
In the appellate court, petitioners claimed that they had seasonably filed their notice
of appeal. They argued that the 15-day reglementary period to appeal started to run
only on July 22, 1998 since this was the day they received the final order of the trial
court denying their motion for reconsideration. When they filed their notice of appeal
on July 27, 1998, only five days had elapsed and they were well within the
reglementary period for appeal.7
On September 16, 1999, the Court of Appeals (CA) dismissed the petition. It ruled
that the 15-day period to appeal should have been reckoned from March 3, 1998 or
the day they received the February 12, 1998 order dismissing their complaint.
According to the appellate court, the order was the "final order" appealable under the
Rules. It held further:
Perforce the petitioners’ tardy appeal was correctly dismissed for the (P)erfection of
an appeal within the reglementary period and in the manner prescribed by law is
jurisdictional and non-compliance with such legal requirement is fatal and effectively
renders the judgment final and executory.8
Petitioners filed a motion for reconsideration of the aforementioned decision. This
was denied by the Court of Appeals on January 6, 2000.
In this present petition for review under Rule 45 of the Rules, petitioners ascribe the
following errors allegedly committed by the appellate court:
I and in accordance with the provisions of law. Thus, one who seeks to avail of the
THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING THE
PETITIONERS’ PETITION FOR CERTIORARI AND MANDAMUS AND IN
AFFIRMING THE ORDER OF THE HON. JUDGE ANTONIO N. ROSALES
WHICH DISMISSED THE PETITIONERS’ APPEAL IN CIVIL CASE NO. C-36
OF THE REGIONAL TRIAL COURT, BRANCH 43, ROXAS, ORIENTAL
MINDORO, EVEN AFTER THE PETITIONERS HAD PAID THE APPEAL
DOCKET FEES.
II
THE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN RULING
AND AFFIRMING THE DECISION OR ORDER OF THE RESPONDENT HON.
ANTONIO M. ROSALES THAT PETITIONERS’ APPEAL WAS FILED OUT OF
TIME WHEN PETITIONERS RECEIVED THE LAST OR FINAL ORDER OF
THE COURT ON JULY 22, 1998 AND FILED THEIR NOTICE OF APPEAL ON
JULY 27, 1998 AND PAID THE APPEAL DOCKET FEE ON AUGUST 3, 1998.
III
THE HONORABLE COURT OF APPEALS FURTHER ERRED IN RULING
THAT THE WORDS "FINAL ORDER" IN SECTION 3, RULE 41, OF THE 1997
RULES OF CIVIL PROCEDURE WILL REFER TO THE [FIRST] ORDER OF
RESPONDENT JUDGE HON. ANTONIO M. MORALES DATED FEBRUARY
12, 1998 INSTEAD OF THE LAST AND FINAL ORDER DATED JULY 1, 1998
COPY OF WHICH WAS RECEIVED BY PETITIONERS THROUGH COUNSEL
ON JULY 22, 1998.
IV.
THE HONORABLE COURT OF APPEALS FINALLY ERRED IN FINDING
THAT THE DECISION IN THE CASE OF DENSO, INC. V. IAC, 148 SCRA 280,
IS APPLICABLE IN THE INSTANT CASE THEREBY IGNORING THE
PECULIAR FACTS AND CIRCUMSTANCES OF THIS CASE AND THE FACT
THAT THE SAID DECISION WAS RENDERED PRIOR TO THE ENACTMENT
OF THE 1997 RULES OF CIVIL PROCEDURE.9
The foregoing issues essentially revolve around the period within which petitioners
should have filed their notice of appeal.
First and foremost, the right to appeal is neither a natural right nor a part of due
process. It is merely a statutory privilege and may be exercised only in the manner
right to appeal must comply with the requirements of the Rules. Failure to do so
often leads to the loss of the right to appeal.10 The period to appeal is fixed by both
statute and procedural rules. BP 129,11 as amended, provides:
Sec. 39. Appeals. – The period for appeal from final orders, resolutions, awards,
judgments, or decisions of any court in all these cases shall be fifteen (15) days
counted from the notice of the final order, resolution, award, judgment, or decision
appealed from. Provided, however, that in habeas corpus cases, the period for appeal
shall be (48) forty-eight hours from the notice of judgment appealed from. x x x
Rule 41, Section 3 of the 1997 Rules of Civil Procedure states:
SEC. 3. Period of ordinary appeal. ― The appeal shall be taken within fifteen (15)
days from the notice of the judgment or final order appealed from. Where a
record on appeal is required, the appellant shall file a notice of appeal and a record
on appeal within thirty (30) days from the notice of judgment or final order.
24
The period to appeal shall be interrupted by a timely motion for new trial or
reconsideration. No motion for extension of time to file a motion for new trial or
reconsideration shall be allowed. (emphasis supplied)
Based on the foregoing, an appeal should be taken within 15 days from the notice of
judgment or final order appealed from. A final judgment or order is one that finally
disposes of a case, leaving nothing more for the court to do with respect to it. It is an
adjudication on the merits which, considering the evidence presented at the trial,
declares categorically what the rights and obligations of the parties are; or it may be
an order or judgment that dismisses an action.12
As already mentioned, petitioners argue that the order of July 1, 1998 denying their
motion for reconsideration should be construed as the "final order," not the February
12, 1998 order which dismissed their complaint. Since they received their copy of
the denial of their motion for reconsideration only on July 22, 1998, the 15-day
reglementary period to appeal had not yet lapsed when they filed their notice of
appeal on July 27, 1998.
What therefore should be deemed as the "final order," receipt of which triggers the
start of the 15-day reglementary period to appeal ¾ the February 12, 1998 order
dismissing the complaint or the July 1, 1998 order dismissing the MR?
In the recent case of Quelnan v. VHF Philippines, Inc.,13 the trial court declared
petitioner Quelnan non-suited and accordingly dismissed his complaint. Upon receipt
of the order of dismissal, he filed an omnibus motion to set it aside. When the
omnibus motion was filed, 12 days of the 15-day period to appeal the order had
lapsed. He later on received another order, this time dismissing his omnibus motion.
He then filed his notice of appeal. But this was likewise dismissed ― for having
been filed out of time.
The court a quo ruled that petitioner should have appealed within 15 days after the
dismissal of his complaint since this was the final order that was appealable under
the Rules. We reversed the trial court and declared that it was the denial of the
motion for reconsideration of an order of dismissal of a complaint which constituted
the final order as it was what ended the issues raised there.
This pronouncement was reiterated in the more recent case of Apuyan v. Haldeman
et al.14 where we again considered the order denying petitioner Apuyan’s motion for
reconsideration as the final order which finally disposed of the issues involved in the
case.
Based on the aforementioned cases, we sustain petitioners’ view that the order dated
July 1, 1998 denying their motion for reconsideration was the final
order contemplated in the Rules.
We now come to the next question: if July 1, 1998 was the start of the 15-day
reglementary period to appeal, did petitioners in fact file their notice of appeal on
time?
Under Rule 41, Section 3, petitioners had 15 days from notice of judgment or final
order to appeal the decision of the trial court. On the 15th day of the original appeal
period (March 18, 1998), petitioners did not file a notice of appeal but instead opted
to file a motion for reconsideration. According to the trial court, the MR only
interrupted the running of the 15-day appeal period.15 It ruled that petitioners, having
filed their MR on the last day of the 15-day reglementary period to appeal, had only
one (1) day left to file the notice of appeal upon receipt of the notice of denial of
their MR. Petitioners, however, argue that they were entitled under the Rules to
a fresh period of 15 days from receipt of the "final order" or the order dismissing
their motion for reconsideration.
In Quelnan and Apuyan, both petitioners filed a motion for reconsideration of the
decision of the trial court. We ruled there that they only had the remaining time of
the 15-day appeal period to file the notice of appeal. We consistently applied this
rule in similar cases,16 premised on the long-settled doctrine that the perfection of an
appeal in the manner and within the period permitted by law is not only mandatory
but also jurisdictional.17 The rule is also founded on deep-seated considerations of
public policy and sound practice that, at risk of occasional error, the judgments and
awards of courts must become final at some definite time fixed by law.18
Prior to the passage of BP 129, Rule 41, Section 3 of the 1964 Revised Rules of
Court read:
Sec. 3. How appeal is taken. — Appeal maybe taken by serving upon the adverse
party and filing with the trial court within thirty (30) days from notice of order
or judgment, a notice of appeal, an appeal bond, and a record on appeal. The
time during which a motion to set aside the judgment or order or for new trial has
been pending shall be deducted, unless such motion fails to satisfy the requirements
of Rule 37.
But where such motion has been filed during office hours of the last day of the
period herein provided, the appeal must be perfected within the day following that in
which the party appealing received notice of the denial of said motion.19 (emphasis
supplied)
According to the foregoing provision, the appeal period previously consisted of 30
days. BP 129, however, reduced this appeal period to 15 days. In the deliberations of
the Committee on Judicial Reorganization20 that drafted BP 129, the raison d’
etre behind the amendment was to shorten the period of appeal21 and enhance the
efficiency and dispensation of justice. We have since required strict observance of
25
this reglementary period of appeal. Seldom have we condoned late filing of notices
of appeal,22 and only in very exceptional instances to better serve the ends of justice.
In National Waterworks and Sewerage Authority and Authority v. Municipality of
Libmanan,23 however, we declared that appeal is an essential part of our judicial
system and the rules of procedure should not be applied rigidly. This Court has on
occasion advised the lower courts to be cautious about not depriving a party of the
right to appeal and that every party litigant should be afforded the amplest
opportunity for the proper and just disposition of his cause, free from the constraint
of technicalities.
In de la Rosa v. Court of Appeals,24 we stated that, as a rule, periods which require
litigants to do certain acts must be followed unless, under exceptional circumstances,
a delay in the filing of an appeal may be excused on grounds of substantial justice.
There, we condoned the delay incurred by the appealing party due to strong
considerations of fairness and justice.
In setting aside technical infirmities and thereby giving due course to tardy appeals,
we have not been oblivious to or unmindful of the extraordinary situations that merit
liberal application of the Rules. In those situations where technicalities were
dispensed with, our decisions were not meant to undermine the force and effectivity
of the periods set by law. But we hasten to add that in those rare cases where
procedural rules were not stringently applied, there always existed a clear need to
prevent the commission of a grave injustice. Our judicial system and the courts have
always tried to maintain a healthy balance between the strict enforcement of
procedural laws and the guarantee that every litigant be given the full opportunity for
the just and proper disposition of his cause.25
The Supreme Court may promulgate procedural rules in all courts.26 It has the sole
prerogative to amend, repeal or even establish new rules for a more simplified and
inexpensive process, and the speedy disposition of cases. In the rules governing
appeals to it and to the Court of Appeals, particularly Rules 42,27 4328 and 45,29 the
Court allows extensions of time, based on justifiable and compelling reasons, for
parties to file their appeals. These extensions may consist of 15 days or more.
To standardize the appeal periods provided in the Rules and to afford litigants fair
opportunity to appeal their cases, the Court deems it practical to allow a fresh period
of 15 days within which to file the notice of appeal in the Regional Trial Court,
counted from receipt of the order dismissing a motion for a new trial or motion for
reconsideration. 30
Henceforth, this "fresh period rule" shall also apply to Rule 40 governing appeals
from the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions
for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on
appeals from quasi-judicial agencies31 to the Court of Appeals and Rule 45 governing
appeals by certiorari to the Supreme Court.32 The new rule aims to regiment or make
the appeal period uniform, to be counted from receipt of the order denying the
motion for new trial, motion for reconsideration (whether full or partial) or any final
order or resolution.
We thus hold that petitioners seasonably filed their notice of appeal within the fresh
period of 15 days, counted from July 22, 1998 (the date of receipt of notice denying
their motion for reconsideration). This pronouncement is not inconsistent with Rule
41, Section 3 of the Rules which states that the appeal shall be taken within 15 days
from notice of judgment or final order appealed from. The use of the disjunctive
word "or" signifies disassociation and independence of one thing from another. It
should, as a rule, be construed in the sense in which it ordinarily implies.33 Hence,
the use of "or" in the above provision supposes that the notice of appeal may be filed
within 15 days from the notice of judgment or within 15 days from notice of the
"final order," which we already determined to refer to the July 1, 1998 order denying
the motion for a new trial or reconsideration.
Neither does this new rule run counter to the spirit of Section 39 of BP 129 which
shortened the appeal period from 30 days to 15 days to hasten the disposition of
cases. The original period of appeal (in this case March 3-18, 1998) remains and the
requirement for strict compliance still applies. The fresh period of 15 days becomes
significant only when a party opts to file a motion for new trial or motion for
reconsideration. In this manner, the trial court which rendered the assailed decision
is given another opportunity to review the case and, in the process, minimize and/or
rectify any error of judgment. While we aim to resolve cases with dispatch and to
have judgments of courts become final at some definite time, we likewise aspire to
deliver justice fairly.
In this case, the new period of 15 days eradicates the confusion as to when the 15-
day appeal period should be counted – from receipt of notice of judgment (March 3,
1998) or from receipt of notice of "final order" appealed from (July 22, 1998).
To recapitulate, a party litigant may either file his notice of appeal within 15 days
from receipt of the Regional Trial Court’s decision or file it within 15 days from
receipt of the order (the "final order") denying his motion for new trial or motion for
reconsideration. Obviously, the new 15-day period may be availed of only if either
motion is filed; otherwise, the decision becomes final and executory after the lapse of
the original appeal period provided in Rule 41, Section 3.
Petitioners here filed their notice of appeal on July 27, 1998 or five days from receipt
of the order denying their motion for reconsideration on July 22, 1998. Hence, the
notice of appeal was well within the fresh appeal period of 15 days, as already
discussed.34
26
We deem it unnecessary to discuss the applicability of Denso (Philippines), Inc. v.
IAC35 since the Court of Appeals never even referred to it in its assailed decision.
WHEREFORE, the petition is hereby GRANTED and the assailed decision of the
Court of Appeals REVERSED and SET ASIDE. Accordingly, let the records of this
case be remanded to the Court of Appeals for further proceedings.
No costs.
SO ORDERED.
G.R. No. 167631. December 16, 2005.*
JENETTE MARIE B. CRISOLOGO, petitioner, vs. GLOBE TELECOM, INC.
and CESAR M. MAUREAL, Vice President for Human Resources, respondents.
Actions; Appeals; Judgment by Default; For the review of a judgment by
default, the applicable rule is Section 2, Rule 41 of the 1997 Rules of Civil
Procedure.—The decision sought to be reviewed in this case is a judgment by
default rendered by the trial court in Civil Case No. MC04-2480. As such, the
applicable rule is Section 2, Rule 41 of the 1997 Rules of Civil Procedure, as
amended,which provides for the different modes of appeal from a Regional Trial
Court’s judgment or final order, to wit: Section 2. Modes of appeal.—(a) Ordinary
appeal.—The appeal to the Court of Appeals in cases decided by the Regional Trial
Court in the exercise of its original jurisdiction shall be taken by filing a notice of
appeal with the court which rendered the judgment or final order appealed from and
serving a copy thereof upon the adverse party. No record on appeal shall be required
except in special proceedings and other cases of multiple or separate appeals where
the law or these Rules so require. In such cases, the record on appeal shall be filed
and served in like manner.  court, which is obviously a question of fact. Cases where an appeal
_______________
*
 SECOND DIVISION.
434
434  SUPREME COURT REPORTS ANNOTATED 
Crisologo vs. Globe Telecom, Inc.
(b) Petition for review.—The appeal to the Court of Appeals in cases decided
by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by
petition for review in accordance with Rule 42. (c) Appeal by certiorari.—In all
cases where only questions of law are raised or involved, the appeal shall be to the
Supreme Court by petition for review on certiorari in accordance with Rule 45.
Same; Same; Same; Remedies Available to a Party Declared in Default.—
In Cerezo vs. Tuazon, the Court reiterated the remedies available to a party declared
in default: a) The defendant in default may, at any time after discovery thereof and
before judgment, file a motion under oath to set aside the order of default on the
ground that his failure to answer was due to fraud, accident, mistake or excusable
negligence, and that he has a meritorious defense (Sec. 3, Rule 18 [now Sec. 3(b),
Rule 9]); b) If the judgment has already been rendered when the defendant
discovered the default, but before the same has become final and executory, he may
file a motion for new trial under Section 1 (a) of Rule 37; c) If the defendant
discovered the default after the judgment has become final and executory, he may
file a petition for relief under Section 2 [now Section 1] of Rule 38; and d) He may
also appeal from the judgment rendered against him as contrary to the evidence or to
the law, even if no petition to set aside the order of default has been presented by him
(Sec. 2, Rule 41). Moreover, a petition for certiorari to declare the nullity of a
judgment by default is also available if the trial court improperly declared a party in
default, or even if the trial court properly declared a party in default, if grave abuse
of discretion attended such declaration.
Same; Same; Words and Phrases; Questions of Law and Questions of
Fact; The test of whether a question is one of law or of fact is not the appellation
given to such question by the party raising the same but whether the appellate court
can determine the issue raised without reviewing or evaluating the evidence, in
which case, it is a question of law, otherwise, it is a question of fact.—The test of
whether a question is one of law or of fact is not the appellation given to such
question by the party raising the same; rather, it is whether the appellate court can
determine the issue raised without reviewing or evaluating the evidence, in which
case, it is a question of law; otherwise, it is a question of fact. The issues on the
award of damages call for a re-evaluation of the evidence before the trial 
435
VOL. 478, DECEMBER 16, 2005  435 
Crisologo vs. Globe Telecom, Inc.
involved questions of fact, of law, or both fall within the exclusive appellate
jurisdiction of the Court of Appeals.
Same; Same; Certiorari; Statutory Construction; An appeal by certiorari
taken to the Supreme Court from the Regional Trial Court submitting issues of fact
may be referred to the Court of Appeals for decision or appropriate action; Both
Sections 5(f) and 6 of Rule 57 use the term “may,” denoting discretion on the part of
the Court in dismissing the appeal or referring the case to the Court of Appeals.—It
is on this score that the Court is inclined to concur with petitioner’s argument that
27
even if the remedy resorted to was wrong, the Court may refer the case to the Court
of Appeals under Rule 56, Section 6, paragraph 2 of the 1997 Rules of Civil
Procedure, as amended, which provides: “(A)n appeal by certiorari taken to the
Supreme Court from the Regional Trial Court submitting issues of fact may be
referred to the Court of Appeals for decision or appropriate action.” This despite the
express provision in Section 5(f) of the same Rule, which provides that an
appeal maybe dismissed when there is error in the choice or mode of appeal. Both
Sections 5(f) and 6 of Rule 57 use the term “may,” denoting discretion on the part of
the Court in dismissing the appeal or referring the case to the Court of Appeals. The
question of fact involved in the appeal and substantial ends of justice warrant a
referral of this case to the Court of Appeals for further appropriate proceedings.
MOTION FOR RECONSIDERATION of a decision of the Supreme Court.
The facts are stated in the resolution of the Court.
     Sheilah F. P. Elbinias-Uyboco for petitioner.
     Salalima, Gonzales & Escoto for respondents.
RESOLUTION
AUSTRIA-MARTINEZ, J.:
Petitioner was an employee of respondent company. When she was promoted as
Director of Corporate Affairs and Regulatory Matters, she became entitled to an
executive car, and she procured a 1997 Toyota Camry. In April 2002, she was
separated from the company. Petitioner filed a complaint for illegal dismissal and
reinstatement with the National Labor Relations Commission (NLRC), which later
dismissed the complaint. Petitioner filed, on August 12, 2004, a petition
for certiorari with the Court of Appeals, docketed as CA-G.R. SP No. 85679
assailing the NLRC’s dismissal.
Pending said petition, respondent company filed with the Regional Trial Court of
Mandaluyong (Branch 213) an action for recovery of possession of a motor vehicle
with application for a writ of replevin with damages, docketed as Civil Case No.
MC04-2480. Petitioner filed a motion to dismiss on the ground of litis pendentia and
forum shopping but this was denied by the trial court. Thus, petitioner filed a petition
for certiorari with the Court of Appeals, docketed as CA-G.R. SP No.
85927.1 Petitioner also filed with the Court of Appeals a motion for the issuance of a
writ of prohibition to enjoin proceedings in the replevin case before the trial court.
Thereafter, respondent company filed a motion to declare defendant in default in
Civil Case No. MC04-2480, which was granted by the trial court. Respondent
company was thus allowed to present its evidence ex-parte. Petitioner filed a motion
for reconsideration of the order of default but it was denied by the trial court. On
April 5, 2005, the trial court rendered a judgment by default, the dispositive portion
of which reads:
WHEREFORE, finding merit in all the foregoing uncontroverted facts supported by
documentary exhibits, judgment is hereby rendered declaring plaintiff to have the
right of possession over the subject motor vehicle and ordering defendant plaintiff to
pay plaintiff the following:
1. The amount of TWO MILLION FIVE HUNDRED FIFTY SIX THOUSAND
FOUR HUNDRED SIXTY PESOS (p2,556,460.00) as damages in the form of
unpaid daily car rental for 730 (From 15 August 2002 until 22 June 2004) days at
THREE THOUSAND FIVE HUNDRED TWO PESOS (P3,502.00) per day;
2. The sum of TWO HUNDRED THOUSAND PESOS (₱200,000.00) AS AND BY
WAY OF Attorney’s fee;
3. The sum of TWO HUNDRED THOUSAND PESOS (₱200,000.00) as exemplary
damages in order to deter others from doing similar act in withholding possession of
a property to another to which he/she has no right to possess; and
4. Costs of suit.
SO ORDERED. 
Petitioner then filed with the Court a petition for review on certiorari under Rule 45
of the Rules of Court, which was denied by the Court in a Resolution dated May 16,
2005, for being the wrong remedy under the 1997 Rules of Civil Procedure, as
amended.
Petitioner thus filed the present motion for reconsideration, alleging that the filing of
said petition is the proper recourse, citing Matute vs. Court of Appeals, 26 SCRA 798
(1969), wherein it was ruled that a defendant declared in default has the remedy set
forth in Section 2, paragraph 3 of Rule 41 of the old Rules of Court.2 Petitioner then
cited in her motion, "Section 2, paragraph 3 or (c) of the Rules of Civil Procedure." 3 
Evidently, petitioner misread the provision cited in the Matute case as that pertaining
to Section 2(c), Rule 41 of the 1997 Rules of Civil Procedure, as amended, which
states: "(c) Appeal by certiorari. - In all cases where only questions of law are raised
or involved, the appeal shall be to the Supreme Court by petition for review
on certiorariin accordance with Rule 45." Hence, she directly filed her petition for
review on certiorari with the Court.
28
Petitioner should be reminded that the Matute case is of 1969 vintage and pertained
to the old Rules of Court. As stated in the Matute case, a defendant validly declared
in default has the remedy set forth in Section 2, paragraph 3 of Rule 41. Note that
under the old Rules, Section 2, paragraph 3 of Rule 41 governed appeals from Courts
of First Instance, the Social Security Commission and the Court of Agrarian
Relations TO THE COURT OF APPEALS, and reads:  that his failure to answer was due to fraud, accident, mistake or excusable
A party who has been declared in default may likewise appeal from the judgment
rendered against him as contrary to the evidence or to the law, even if no petition for
relief to set aside the order of default has been presented by him in accordance with
Rule 38. (Emphasis supplied)  default, but before the same has become final and executory, he may file a motion
Had petitioner been more circumspect, she would have easily ascertained that said
Section 2, paragraph 3 of Rule 41 of the old Rules of Court, as cited in
the Matute case, had already been superseded by the 1997 Rules of Civil Procedure,
as amended, and under these new rules, the different modes of appeal are clearly laid
down. 
The decision sought to be reviewed in this case is a judgment by default rendered by
the trial court in Civil Case No. MC04-2480. As such, the applicable rule is Section
2, Rule 41 of the 1997 Rules of Civil Procedure, as amended, which provides for
the different modes of appeal from a Regional Trial Court’s judgment or final order,
to wit:
Section 2. Modes of appeal. —
(a) Ordinary appeal. — The appeal to the Court of Appeals in cases decided by
the Regional Trial Court in the exercise of its original jurisdiction shall be taken
by filing a notice of appeal with the court which rendered the judgment or final
order appealed from and serving a copy thereof upon the adverse party. No
record on appeal shall be required except in special proceedings and other cases
of multiple or separate appeals where the law or these Rules so require. In such
cases, the record on appeal shall be filed and served in like manner.
(b) Petition for review. — The appeal to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition
for review in accordance with Rule 42.
(c) Appeal by certiorari. — In all cases where only questions of law are raised or
involved, the appeal shall be to the Supreme Court by petition for review on
certiorari in accordance with Rule 45. (Emphasis supplied)
In Cerezo vs. Tuazon,4 the Court reiterated the remedies available to a party declared
in default: 
a) The defendant in default may, at any time after discovery thereof and before
judgment, file a motion under oath to set aside the order of default on the ground
negligence, and that he has a meritorious defense (Sec. 3, Rule 18 [now Sec. 3(b),
Rule 9]);
b) If the judgment has already been rendered when the defendant discovered the
for new trial under Section 1 (a) of Rule 37;
c) If the defendant discovered the default after the judgment has become final and
executory, he may file a petition for relief under Section 2 [now Section 1] of Rule
38; and 
d) He may also appeal from the judgment rendered against him as contrary to the
evidence or to the law, even if no petition to set aside the order of default has been
presented by him (Sec. 2, Rule 41). 
Moreover, a petition for certiorari to declare the nullity of a judgment by default is
also available if the trial court improperly declared a party in default, or even if the
trial court properly declared a party in default, if grave abuse of discretion attended
such declaration.5 
The filing of the present petition is clearly not the proper remedy to assail the default
judgment rendered by the trial court. Petitioner still has the available remedy of filing
with the Regional Trial Court a motion for new trial or an ordinary appeal to the
Court of Appeals from the trial court’s default judgment. Note that petitioner admits
that she was "properly declared in default."6 Thus, there is no question of any
improvident or improper declaration of default by the trial court, and the remedy of
filing a special civil action for certiorari has been effectively foreclosed on
petitioner. Her only recourse then is to file an ordinary appeal with the Court of
Appeals under Section 2(a), Rule 41 of the 1997 Rules of Civil Procedure, as
amended. 
Instead, she came directly to this Court via petition for review on certiorari, without
setting forth substantial reasons why the ordinary remedies under the law should be
disregarded and the petition entertained. Petitioner cannot even find solace in
the Matute case as the old Rules of Court then applicable explicitly laid down the
remedy of an ordinary appeal to the Court of Appeals, and not appeal
by certiorari to this Court, by a defendant declared in default. 
29
Petitioner further argues that the petition involved questions of law, and the Court
should have taken cognizance of the case. The grounds set forth in her petition prove
otherwise, viz.:
GROUNDS
I express provision in Section 5(f) of the same Rule, which provides that an
THE COMPLAINT FOR REPLEVIN FILED BY RESPONDENTS AGAINST
PETITIONER SHOULD HAVE BEEN DISMISSED ON THE GROUND OF LITIS
PENDENTIA AND FOR RESPONDENTS’ VIOLATION OF THE RULES
AGAINST FORUM-SHOPPING
II
THE TRIAL COURT WENT AHEAD WITH THE EX-PARTE PRESENTATION
OF RESPONDENT’S EVIDENCE DESPITE THE PETITIONER’S PENDING
MOTION FOR RECONSIDERATION
III
THE MONETARY AWARDS FOR DAMAGES AND ATTORNEY’S FEES ARE
UNWARRANTED AND UNJUSTIFIABLE CONSIDERING THAT SUCH ARE
NOT SUPPORTED BY LAW AND JURISPRUDENCE
IV
THE COURT A QUO ISSUED THE ASSAILED DECISION IN A WAY THAT IT
IS NOT IN ACCORD WITH LAW OR APPLICABLE DECISIONS OF THE
SUPREME COURT AND HAS SO FAR DEPARTED FROM THE USUAL
COURSE OF JUDICIAL PROCEEDINGS AS TO CALL FOR THE EXERCISE
BY THE SUPREME COURT OF ITS POWER OF SUPERVISION
The test of whether a question is one of law or of fact is not the appellation given to
such question by the party raising the same; rather, it is whether the appellate court
can determine the issue raised without reviewing or evaluating the evidence, in
which case, it is a question of law; otherwise, it is a question of fact. 7 The issues on
the award of damages call for a re-evaluation of the evidence before the trial court,
which is obviously a question of fact. Cases where an appeal involved questions of
fact, of law, or both fall within the exclusive appellate jurisdiction of the Court of
Appeals.8 (Emphasis supplied)
It is on this score that the Court is inclined to concur with petitioner’s argument that
even if the remedy resorted to was wrong, the Court may refer the case to the Court
of Appeals under Rule 56, Section 6, paragraph 2 of the 1997 Rules of Civil
Procedure, as amended, which provides: "(A)n appeal by certiorari taken to the
Supreme Court from the Regional Trial Court submitting issues of fact may be
referred to the Court of Appeals for decision or appropriate action." This despite the
appeal may be dismissed when there is error in the choice or mode of appeal. 
Both Sections 5(f) and 6 of Rule 57 use the term "may," denoting discretion on the
part of the Court in dismissing the appeal or referring the case to the Court of
Appeals. The question of fact involved in the appeal and substantial ends of justice
warrant a referral of this case to the Court of Appeals for further appropriate
proceedings. 
WHEREFORE, the motion for reconsideration is GRANTED. The petition is
reinstated and the case is REFERREDto the Court of Appeals for appropriate
action.
SO ORDERED.
G.R. No. 190660. April 11, 2011.*
LAND BANK OF THE PHILIPPINES, petitioner, vs. COURT OF APPEALS
and ELIZABETH DIAZ, represented by FRANCISCA P. DE GUZMAN as
Attorney-in-Fact, respondents.
Appeals; Petition for Review under Rule 42 of the Rules of Court is the proper
mode of appeal from decisions of Regional Trial Courts sitting as Special Agrarian
Courts (SACs) is by petition for review under Rule 42 of the Rules of Court and not
through an ordinary appeal under Rule 41.—Following Land Bank of the
Philippines v. De Leon, 388 SCRA 537 (2002), the proper mode of appeal from
decisions of Regional Trial Courts sitting as SACs is by petition for review under
Rule 42 of the Rules of Court and not through an ordinary appeal under Rule 41. The
Court, in the immediately cited case of Land Bank, observing that “before the instant
case reached us, Land Bank of the Philippines had no authoritative guideline on how
to appeal decisions of SACs considering the seemingly conflicting provisions of
30
Sections 60 and 61 of RA 6657,” held that “Sec. 60 of RA 6657 clearly and
categorically states that the said mode of appeal (petition for review) should be
adopted.”
Same; Although an appeal is an essential part of our judicial process, it has
been held, time and again, that the right thereto is not a natural right or a part of
due process but is merely a statutory privilege.—Although appeal is an essential part
of our judicial process, it has been held, time and again, that the right thereto is not a
natural right or a part of due process but is merely a statutory privilege. Thus, the
perfection of an appeal in the manner and within the period prescribed by law is not
only mandatory but also jurisdictional and failure of a party to conform to the rules
regarding appeal will render the judgment final and executory. Once a decision
attains finality, it becomes the law of the case irrespective of whether the decision is
erroneous or not and no court—not even the Supreme Court—has the power to
revise, review, change or alter the same. The basic rule of finality of judgment is
grounded on the fundamental principle of public policy and sound practice that, at
the risk of
_______________
* THIRD DIVISION.
562
562 SUPREME COURT REPORTS ANNOTATED
Land Bank of the Philippines vs. Court of Appeals
occasional error, the judgment of courts and the award of quasi-judicial
agencies must become final at some definite date fixed by law.” (emphasis and
underscoring supplied)
PETITION for review on certiorari of a decision of the Court of Appeals.
   The facts are stated in the opinion of the Court.
  LBP Legal Services Group for petitioner.
  Vicente D. Millora for respondent.
CARPIO-MORALES, J.:
Private respondent Elizabeth P. Diaz (Elizabeth) was the registered owner of a
parcel of agricultural land measuring approximately 15 hectares, situated in San
Ricardo, Talavera, Nueva Ecija and covered by Transfer Certificate of Title (TCT)
No. 197132. Ten hectares of the land were expropriated by the Department of
Agrarian Reform (DAR) under Presidential Decree No. 27 and Executive Order No.
228.
The DAR valued the expropriated land (the land) at P54,880.59 plus increment
of P143,041.59 or a total of P197,922.18. Not satisfied with the valuation, Elizabeth,
through her attorney-in-fact Francisca P. De Guzman (Francisca), filed a
complaint1 on November 28, 2001 against the Land Bank of the Philippines (Land
Bank) and the DAR before the Regional Trial Court of Guimba, Nueva Ecija, Branch
33, acting as a Special Agrarian Court (SAC). The complaint, docketed as Special
Agrarian Case No. 1194-G, prayed that just compensation be fixed at P350,000 per
hectare or a total of P5,250.000.
Upon Elizabeth’s motion, three Commissioners were appointed to determine the
just compensation for the land.
_______________
1 Records, pp. 1-11.
563
VOL. 647, APRIL 11, 2011 563
Land Bank of the Philippines vs. Court of Appeals
By Decision of June 21, 2006,2 the SAC, adopted the DAR’s valuation on the
basis of average gross production and fixed the just compensation plus increment at
P19,107.235 per hectare or a total of P197,922.29. It held that given the formula used
in Gabatin v. LBP,3 the Commissioner’s Report and the fair market or assessed value
of the land can not be considered in the valuation. 
Elizabeth’s motion for reconsideration was denied by Order dated August 31,
2006,4 hence, she elevated the case to the Court of Appeals.5
Land Bank and the DAR failed to file their appellees’ brief. During the pendency
of the appeal, Land Bank filed a Motion for Leave to Admit Defendant-Appellee[’s]
Motion to Dismiss Appeal, 6 maintaining that the appeal should be dismissed because
an ordinary appeal is the wrong remedy, the proper mode being by way of a petition
for review, citing Section 60 of Republic Act No. 6657 or the Comprehensive
Agrarian Reform Law. Hence, Land Bank concluded that the appellate court had no
jurisdiction over the case, the SAC decision having attained finality following Land
Bank of the Philippines v. De Leon7 which held that failure of a party to file the
proper remedy within fifteen (15) days from receipt of notice of the assailed decision
renders it final.
By Resolution8 of June 2, 2009, the appellate court denied Land Bank’s motion
to dismiss. It faulted Land Bank for not filing an appellee’s brief as directed, and for
filing the motion to dismiss the appeal after the lapse of 157 days from the last day
for filing the brief.
_______________
2 Id., at pp. 240-244. Penned by Judge Ismael P. Casabar.
3 G.R. No. 148223, November 25, 2004.
4 Records, pp. 257-258.
5 Id., at pp. 260-262.
6 Rollo, pp. 131-135
7 G.R. No. 143275, September 10, 2002, 388 SCRA 537.
8 CA Rollo, pp. 178-181.
564
564 SUPREME COURT REPORTS ANNOTATED
Land Bank of the Philippines vs. Court of Appeals
Hence, the present petition for review on certiorari,9Land Bank maintaining that
the SAC Decision had become final and executory and, therefore, the appellate court
31
never acquired jurisdiction over the appeal filed by Elizabeth, a wrong mode of
appeal.
Additionally, Land Bank ascribes bad faith on the part of Elizabeth for, instead
of sending a copy of her motion for reconsideration before the SAC and her
subsequent Notice of Appeal to Land Bank’s counsel of record Atty. Graciela L.
Gutierrez at her address at the Land Bank Field Office in Cabanatuan City, Elizabeth
sent them to the Land Bank’s main office in Malate, Manila where, it points out, the
lawyers neither have control nor possession of the records of the case.
In view of the filing of the present petition, action on Elizabeth’s appeal was held
in abeyance by the appellate court per Resolution dated June 7, 2010.10
The petition is meritorious.
Indeed, following Land Bank of the Philippines v. De Leon,11 the proper mode of
appeal from decisions of Regional Trial Courts sitting as SACs is by petition for
review under Rule 42 of the Rules of Court and not through an ordinary appeal under
Rule 41. The Court, in the immediately cited case of Land Bank, observing that
“before the instant case reached us, Land Bank of the Philippines had no
authoritative guideline on how to appeal decisions of SACs considering the
seemingly conflicting provisions of Sections 60 and 61 of RA 6657,” held that “Sec.
60 of RA 665712 clearly and categori-
_______________
9  Id., at pp. 3-46.
10 Id., at p. 363.
11 Supra note 7.
12 “An Act Instituting A Comprehensive Agrarian Reform Program To Promote
Social Justice And Industrialization Providing The Mechanism For Its
Implementation, And For Other Purposes.”
565
VOL. 647, APRIL 11, 2011 565
Land Bank of the Philippines vs. Court of Appeals
cally states that the said mode of appeal (petition for review) should be adopted.”
“First, there is no conflict between Section[s] 60 and 61 of RA 6657 inasmuch as
the Rules of Court do not at all prescribe the procedure for ordinary appeals as the
proper mode of appeal for decisions of Special Agrarian Courts. Section 61 in fact
makes no more than a general reference to the Rules of Court and does not even
mention the procedure for ordinary appeals in Section 2, Rule 41 of the 1997
Revised Rules of Civil Procedure as the appropriate method of elevating to the Court
of Appeals decisions of Special Agrarian Courts in eminent domain cases.
Second, the failure to mention Special Agrarian Courts in Section 1 of Rule 43 of
the Revised Rules of Civil Procedure cannot be construed to mean that a petition for
review is not permissible for decisions of the said special courts. In fact, the said
Rule is not relevant to determine whether a petition for review is the proper mode of
appeal from decisions of Regional Trial Courts in agrarian cases, that is, why they
act as Special Agrarian Courts. Section 1 of Rule 43 of the 1997 Revised Rules of
Civil Procedure merely mentions the Court of Tax Appeals and the other different
quasi-judicial agencies without exclusivity in its phraseology. Such omission cannot
be construed to justify the contention that a petition for review is prohibited for
decisions on special agrarian cases inasmuch as the category is for quasi-judicial
agencies and tax courts to which the Regional Trial Courts do not properly belong.
Although Supreme Court of Circular No. 1-91 (precursor to Rule 43 of the Revised
Rules of Civil Procedure) included the decisions of Special Agrarian Courts in the
enumeration requiring petition for review, its non-inclusion later on in Rule 43
merely signifies that it was inappropriately classified as a quasi-judicial agencies.”
What is indisputable is that Section 60 expressly regards a petition for review
as the proper way of appealing decisions of agrarian courts. So far, there is no
rule prescribed by this Court expressly disallowing the said procedure.
Third, far from being in conflict, Section 61 of RA 6657 can easily be
harmonized with Section 60. The reference to the Rules of Court means that the
specific rules for petitions for review in the Rules of Court and other relevant
procedures in appeals filed before the Court of Appeals shall be followed in appealed
decisions of Spe-
566
566 SUPREME COURT REPORTS ANNOTATED
Land Bank of the Philippines vs. Court of Appeals
cial Agrarian Courts. Considering that RA 6657 cannot and does not provide the
details on how the petition for review shall be conducted, a suppletory application of
the pertinent provisions of the Rules of Court is necessary. In fact, Section 61 uses
the word “review” to designate the mode by which the appeal is to be effected. The
reference therefore by Section 61 to the Rules of Court only means that the
procedure under Rule 42 for petitions for review is to be followed for appeals in
agrarian cases.”13(italics in the original; emphasis and underscoring supplied)
The adoption of a petition for review as the mode of appeal is justified in order to
“hasten” the resolution of cases involving issues on just compensation of
expropriated lands under RA 6657. Thus the Court, still in the immediately
cited Land Bank case, pronounced:
“The reason why it is permissible to adopt a petition for review when
appealing cases decided by the Special Agrarian Courts in eminent domain case
is the need for absolute dispatch in the determination of just compensation. Just
compensation means not only paying the correct amount but also paying for the
land within a reasonable time from its acquisition. Without prompt payment,
compensation cannot be considered “just” for the property owner is made to suffer
the consequences of being immediately deprived of his land while being made to
wait for a decade or more before actually receiving the amount necessary to cope
with his loss. Such objective is more in keeping with the nature of a petition for
review.
Unlike an ordinary appeal, a petition for review dispenses with the filing of a
notice of appeal or completion of records as requisites before any pleading is
submitted. A petition for review hastensthe award of fair recompense  to
32
deprived landowners for the government-acquired property, an end not
foreseeable in an ordinary appeal. . . .”14 (Italics in the original; emphasis and
underscoring supplied)
_______________
13 388 SCRA 537, 544-545 (2002).
14 Id., at p. 546.
567
VOL. 647, APRIL 11, 2011 567
Land Bank of the Philippines vs. Court of Appeals
Following then the same Land Bank case, resort by Elizabeth to a wrong mode of
appeal was fatal to her cause as it resulted in rendering the decision appealed from
final and executory. Her notice of appeal did not, it bears emphasis, stop the running
of the reglementary period to file a petition for review.
Although appeal is an essential part of our judicial process, it has been held,
time and again, that the right thereto is not a natural right or a part of due
process but is merely a statutory privilege. Thus, the perfection of an appeal in
the manner and within the period prescribed by law is not only mandatory but
also jurisdictional and failure of a party to conform to the rules regarding
appeal will render the judgment final and executory. Once a decision attains
finality, it becomes the law of the case irrespective of whether the decision is
erroneous or not and no court—not even the Supreme Court—has the power to
revise, review, change or alter the same. The basic rule of finality of judgment is
grounded on the fundamental principle of public policy and sound practice that, at
the risk of occasional error, the judgment of courts and the award of quasi-judicial
agencies must become final at some definite date fixed by law.”15 (emphasis and
underscoring supplied)
WHEREFORE, the petition is GRANTED. The Resolution of the Court of
Appeals dated June 2, 2009 is SET ASIDE.
The Decision dated June 21, 2006 of the Regional Trial Court of Guimba, Nueva
Ecija, Branch 33 sitting as a Special Agrarian Court in Agr. Case No. 1194-G is
deemed final and executory.
SO ORDERED.
Brion, Bersamin, Villarama, Jr. and Sereno, JJ., concur.
Petition granted, resolution set aside.  _______________
_______________
15 Zamboanga Forest Managers Corp. v. New Pacific Timber and Supply Co., et
al., G.R. No. 143275, 399 SCRA 376, 385 (2003).
568
568 SUPREME COURT REPORTS ANNOTATED
Land Bank of the Philippines vs. Court of Appeals
Note.—After a decision is declared final and executory, vested rights are already
acquired by the winning party though in exceptional cases the principle of finality of
judgments may be relaxed to remedy manifest injustice attendant to rigorous
application of the rules of procedure but only in instances when the party invoking
liberality shows a reasonable or meritorious explanation for such non-compliance.
(Rivera vs. Court of Appeals, 544 SCRA 434 [2008])
G.R. No. 150888. September 24, 2004.*
TRAVERSE DEVELOPMENT CORPORATION,
petitioner, vs. DEVELOPMENT BANK OF THE PHILIPPINES, respondent.
Remedial Law; Appeals; Court of Appeals has no jurisdiction over appeals
from the decision of the Regional Trial Court rendered in the exercise of its original
jurisdiction in cases wherein the issues raised are purely legal; Remedy of the
aggrieved party is to appeal the decision via a petition for review on certiorari to the
Supreme Court under Rule 45 of the Rules of Court.—Under Batas Pambansa Blg.
129, as amended, the Court of Appeals has exclusive appellate jurisdiction over
decisions of the Regional Trial Courts in the exercise of its original jurisdiction.
Under Rule 41, Section 2 of the Rules of Court, as amended, the aggrieved party may
appeal from the said decision by filing a notice of appeal and paying the requisite
docket fees therefor within fifteen days from notice of said decision. However, the
Court of Appeals has no jurisdiction over appeals from the decision of the Regional
Trial Court rendered in the exercise of its original jurisdiction in cases wherein the
issues raised are purely legal. In such a case, the remedy of the aggrieved party is to
appeal the decision via a petition for review on certiorari in this Court under Rule 45
of the Rules of Court.
Same; Same; Distinction between a question of law and a question of fact.—It
has been held in a number of cases that there is a “question of law” when the doubt
or difference arises as to what the law is on certain state of facts, and which does not
call for an examination of the probative value of the evidence presented by the
parties-litigants. On the other hand, there is a “question of fact” when the doubt or
controversy arises as to the truth or falsity of the alleged facts. Simply put, when
there is no dispute as to fact, the question of whether or not the conclusion drawn
therefrom is correct, is a question of law.
PETITION for review on certiorari of the decision and resolution of the Court of
Appeals.
*
 SECOND DIVISION.
84
84  SUPREME COURT REPORTS ANNOTATED 
Traverse Development Corporation vs. Development Bank of the Philippines
The facts are stated in the opinion of the Court.
     Jesus Concepcion for petitioner.
33
CALLEJO, SR., J.:
Before us is a petition for review on certiorari assailing the Decision 1 of the Court of
Appeals dismissing the petitioner’s appeal in CA-G.R. CV No. 43157 for lack of
jurisdiction and the Resolution denying the motion for reconsideration thereof.  The petitioner prayed that it be granted the following reliefs:
On July 21, 1980, the respondent, Development Bank of the Philippines (DBP),
granted a loan of ₱910,000.00 to the petitioner, Traverse Development Corporation,
for the construction of a three-storey commercial building on its property located in
Tarlac (now Tarlac City), with an area of 698 square meters covered by TCT No.
154736. The loan was payable in fifteen (15) years, or until June 30, 1996. To secure
the payment thereof, the petitioner executed a real estate mortgage over a portion of
said property, consisting of 349 square meters. The contract of mortgage was
annotated at the dorsal portion of TCT No. 154736 as Entry No. E-20-10483.2
Under the real estate mortgage, the petitioner was required to secure an insurance
policy covering the building against fire and earthquake from an acceptable
insurance company and to endorse the corresponding policy/policies to the
respondent. The respondent was authorized to foreclose the mortgage extrajudicially
in case the petitioner defaulted on its obligation. 
The petitioner secured a fire insurance policy from the FGU Insurance Corporation
for ₱1,000,000, effective until May 7, 1982. However, before the said date, the
respondent required the petitioner to secure another fire insurance policy, this time
from the Central Surety and Insurance Company (CSIC) also for ₱1,000,000. The
petitioner did as directed and secured Fire Insurance Policy No. TAR 1056 from
CSIC covering the building for the period of May 7, 1982 to May 7, 1983.3 Under
the policy, the CSIC obliged itself to pay, in case of loss or damage to the insured
property, the amount of such loss or damage to the respondent or as its interests may
appear.4
On August 9, 1982, the building was gutted by fire. The petitioner notified the
respondent, through a written notice, of the total loss of the building and, at the same
time, filed its claim with CSIC in the amount of ₱1,000,000 under the insurance
policy.  6. Sentencing defendant SURETY to pay to plaintiff exemplary
On November 6, 1982, the CSIC proposed a settlement of the petitioner’s claim for
₱230,748.00. The petitioner rejected the offer and filed, on February 28, 1983, a
complaint against the CSIC and the respondent in the Regional Trial Court (RTC) of
Quezon City. The case was docketed as Civil Case No. Q-37497.
The petitioner alleged that, despite its demands, the CSIC refused to pay the amount
of ₱1,000,000 which was the amount of the insurance plus interests, and that because
of such delay, it failed to pay its loan to the respondent and to collect rentals from its
prospective lessees on the building. The respondent failed to convince the CSIC to
pay the said amount.
WHEREFORE, after hearing, it is most respectfully prayed that judgment
be rendered by this Honorable Court in favor of the plaintiff and against the
defendants as follows:
1. Sentencing the defendants, jointly and severally, to pay to the
plaintiff the amount of ₱1,000,000.00, the amount for which Fire
Insurance Company Policy No. TAR 1056 was issued plus interest
thereon at the legal rate computed thirty (30) days after defendants
received proof of loss;
2. Sentencing defendants, jointly and severally, to pay to plaintiff
actual and compensatory damages in an amount of not less than
₱275,000.00, more or less;
3. Sentencing defendants, jointly and severally, to pay to the
plaintiff, rentals which it failed to receive from the premises due to
the unjustifiable delay of the defendants in the settlement of
plaintiff’s claim;
4. Sentencing defendants, jointly and severally, to pay to plaintiff
the interest and penalty charged to plaintiff’s loan account with the
Development Bank of the Philippines due to the unjustifiable delay
of defendants in the settlement of plaintiff’s claim;
5. Sentencing defendant SURETY to pay to plaintiff nominal
damages in an amount of not less than ₱100,000.00, more or less;
damages in an amount of not less than ₱100,000.00, more or less;
7. Sentencing defendants, jointly and severally, to pay to plaintiff
the amount of ₱50,000.00 by way of attorney’s fees and expenses
of litigation;
8. Sentencing defendants, jointly and severally, to pay the costs of
suit.
34
 Plaintiff prays for such other and further reliefs as may be just and equitable
in the premises.5
However, the RTC did not issue any temporary restraining order.
During the pendency of Civil Case No. Q-37497, the respondent foreclosed the real
estate mortgage upon the petitioner’s default in the payment of its obligation under
the said contract. The respondent was the highest bidder at the sale at public auction,
with the bid price of ₱540,050.00. A certificate of sale was issued in its favor on
May 30, 1990 and was annotated at the dorsal portion of TCT No. 154736.6 The
respondent consolidated its title to the property in due course.
On May 28, 1991, the petitioner filed a complaint against the respondent in the RTC
of Tarlac, for the annulment of the extrajudicial foreclosure sale and damages; and
for the issuance of a writ of preliminary injunction and temporary restraining order,
to enjoin the defendant from selling the property. The case was docketed as Civil
Case No. 74327 which was raffled to Branch 63, Tarlac, Tarlac.
As its first cause of action, the petitioner alleged, inter alia, that the foreclosure of the
real estate mortgage of the entire property, as well as the sale thereof at public
auction to the respondent, was null and void because only 349 square meters of the
entire property, or one-half (1/2) of the eastern portion thereof, was mortgaged to the
respondent. The petitioner alleged that its failure to pay its loan was due to the fire
that gutted its building, a fortuitous event under Article 1174 of the New Civil Code;
as such, it was excused from paying its loan. The petitioner also alleged that were it
not for the delay of the payment of its insurance claim from the CSIC, an insurance
company chosen by the respondent, it would have been able to pay its loan, as
provided in the real estate mortgage.
On its second cause of action, the petitioner alleged that the respondent proceeded
with the extrajudicial foreclosure of the mortgage and the sale of its property at
public auction despite the pendency of Civil Case No. Q-37497.
The petitioner prayed that it be granted the following reliefs:
WHEREFORE, it is respectfully prayed that –
(1) immediately upon the filing of this Complaint, a temporary
restraining order be issued ex parte and, after notice and hearing, a
writ of preliminary injunction, enjoining defendants from
consolidating ownership over the foreclosed properties or issuing
new transfer certificate of title;
(2) after trial, judgment be rendered in favor of plaintiff and
against defendants –
[a] on the First Cause of Action, annulling the foreclosure
sale and enjoining defendants from consolidating
ownership over the foreclosed properties or issuing new
transfer certificate of title thereto;
[b] on the Second Cause of Action, ordering defendants to
pay plaintiff, jointly and severally –
moral damages in the amount of ₱200,000.00; 
attorney’s fees and expenses of litigation in the sum of ₱100,000.00;
Exemplary or corrective damages of ₱100,000.00; and
the costs of suit. 
Plaintiff prays for such other reliefs as this Court may deem just and
equitable in the premises.8
Since the RTC did not issue a writ of preliminary injunction, the respondent
consolidated its title on August 21, 1991 over the foreclosed property and was placed
in possession thereof.
Almost two (2) years thereafter, or on July 7, 1993, the petitioner filed another
complaint in the RTC of Tarlac against DBP for annulment of extrajudicial
foreclosure proceedings, reconveyance of title, cancellation of writ of possession,
damages and preliminary injunction with prayer for a restraining order. The
verification in the complaint was signed by Angel Tadeo Q. Roxas. The case was
docketed as Civil Case No. 78859 and raffled to Branch 63 of the court. 
The petitioner alleged, inter alia, that, despite the respondent’s interference in the
procurement of a fire insurance policy over the still-to-be constructed building, and
the fact that the respondent was entitled to the proceeds of the insurance policy under
the real estate mortgage and fire insurance policy in the amount of ₱1,000,000.00,
the said respondent still proceeded with the extrajudicial foreclosure of the real estate
mortgage; the respondent failed to give notice to the petitioner relative to its
agreement with the respondent to await the outcome of Civil Case No. Q-37497 and
Civil Case No. 7432 before the latter consolidated its title over the property and took
possession thereof; the petitioner was no longer obliged to pay its loan to the
respondent because of the total loss of the building; the petitioner’s failure to pay its
35
loan was due to the delay in the payment of the amount of ₱1,000,000 in insurance
policy by the CSIC; since it was the respondent which impelled the petitioner to
procure the said policy, the petitioner should not be faulted for failure to pay its loan.
The petitioner prayed for judgment, thus:
WHEREFORE, it is respectfully prayed that a restraining order be
immediately issued by this Honorable Court prohibiting or restraining the
defendant or any other persons acting in its behalf from proceeding with the
sale of plaintiffs’ (sic) properties to third parties, either through public
bidding or through negotiated sale.
And after due hearing, judgment be rendered:
a) Making the restraining order and/or preliminary injunction
permanent and declare the extra-judicial foreclosure as null and
void; 
b) Ordering defendant to reconvey to plaintiff the title to the
foreclosed properties;
c) Declaring the Writ of Possession issued thereon as cancelled and
ordering defendant to return and surrender possession of the
premises it seized to the plaintiff;
d) Ordering defendant to pay the plaintiff moral damages in an
amount not less than ₱500,000.00 and exemplary damages in the
sum of ₱100,000.00; 
e) Ordering defendant to pay attorney’s fees and expenses of
litigation in the amount of ₱100,000.00; and
f) to pay the cost of suit.
PLAINTIFF FURTHER PRAYS for such other reliefs this Honorable Court
may deem just and equitable in the premises.10
The case was raffled to Branch 63 of the court. On July 15, 1993, the respondent
filed an Omnibus Motion11 in Civil Case No. 7885 for the dismissal of the case on
the grounds of litis pendentia and forum shopping and to cite Angel Tadeo Q. Roxas
and the petitioner’s counsel, Atty. Jesus A. Concepcion, in contempt of court. The
respondent asserted that Civil Case No. 7885 was a duplication of Civil Case No.
7432 pending before the same branch of the RTC, with the same parties, the same
issues and the same reliefs being prayed for by the petitioner. The respondent cited
Section 1(e), Rule 16 of the 1985 Rules of Court, as its ground for its motion to
dismiss Civil Case No. 7885. It asserted that Angel Tadeo Roxas, the petitioner and
its counsel, were guilty of indirect contempt and should be sanctioned for abusing the
processes of the courts, citing the ruling of this Court in Minister of Natural
Resources vs. Heirs of Orval Hughes.12
The respondent opposed the motion asserting that the reliefs prayed for by it in the
two cases are different. It contended that in Civil Case No. 7432, it sought the
nullification of the extrajudicial foreclosure of the mortgage and the sale of the
mortgaged property at public auction and prayed for an injunctive relief to enjoin the
respondent from consolidating its title over the property; on the other hand, in Civil
Case No. 7885, it sought to enjoin the respondent from selling the property to third
parties, and the nullification of the extrajudicial foreclosure of the mortgage,
including the sale at public auction of the mortgaged property on account of the
respondent’s violations of the real estate mortgage provisions, and to cancel the writ
of possession in its favor. The petitioner contended that the decision of the RTC in
Civil Case No. 7432 was not a bar to its action in Civil Case No. 7885 and that
Roxas and his counsel were not liable for contempt of court. 
On August 20, 1993, the trial court issued an Order granting the respondent’s motion
to dismiss the case, but denied its motion to cite Roxas, the petitioner and its counsel
for contempt of court.
The petitioner appealed the decision to the Court of Appeals in which it asserted the
following:
I
THE LOWER COURT ERRED IN DISMISSING THE COMPLAINT
BECAUSE OF LITIS PENDENTIA.
II
THE LOWER COURT ERRED IN HOLDING THAT THE PLAINTIFF IS
GUILTY OF FORUM SHOPPING UNDER THE CONCLUSION THAT
CIVIL CASE NO. 7432 AND CIVIL CASE NO. 7885 ARE BASED ON
THE SAME ALLEGATIONS OF FACTS INVOLVING THE SAME
ISSUE, THE SAME TRANSACTION AND ARE BETWEEN THE SAME
PARTIES.
III
36
 THE LOWER COURT ERRED IN NOT ORDERING THE or controversy arises as to the truth or falsity of the alleged facts. Simply put, when
CONSOLIDATION OF CIVIL CASE NO. 7432 WITH CIVIL CASE NO. there is no dispute as to fact, the question of whether or not the conclusion drawn
7885.13 therefrom is correct, is a question of law.19

On July 27, 2001, the Court of Appeals rendered judgment dismissing the appeal for
lack of jurisdiction, ruling that the remedy of the petitioner from the trial court’s
order dismissing Civil Case No. 7885 was to file a petition for review on certiorari
under Rule 45 of the Rules of Court, the sole issue raised by it on appeal being
purely legal and not factual.
The petitioner now comes to this Court, asserting that:  guilty of forum shopping; and (c) whether the trial court should have denied the
1. The appeal below raises not only questions of law but also questions of
fact that may very well be looked into.14
2. Contrary to the ruling of the lower court, the appeal below is the "correct
mode" of appeal.15
3. Because Civil Case No. 7885 is merely a continuation of Civil Case No.
7432, consolidation, not dismissal, is the proper remedy.16
The issue for resolution is whether or not the Court of Appeals erred in dismissing
the petitioner’s appeal on the ground that it had no jurisdiction over the same. The
resolution of the issue is, in turn, anchored on the determination of whether the
petitioner raised purely legal issues in the appellate court.
We agree with the Court of Appeals that only legal issues were raised by the
petitioner in its appeal: (a) whether its action in Civil Case No. 7885 which was
raffled to Branch 63 of the court is barred by the pendency of Civil Case No. 7432,
also pending in the same court and, if so, whether the petitioner is guilty of forum
shopping; (b) whether Roxas, a member of the petitioner’s Board of Directors, who
signed the verification of the complaint in Civil Case No. 7885 and its counsel are
consolidation of the proceedings in the two cases considering that the same were
raffled to the same court.
The petitioner appended to its brief a copy of its complaint in Civil Case No. 7432.
The records of Civil Case No. 7885 were elevated to the Court of Appeals. Thus, the
Court of Appeals had the complaints in Civil Cases Nos. 7885 and 7432 before it for
review in resolving the issue of whether or not the issues raised were purely legal or
factual, and whether it had jurisdiction over the petitioner’s appeal or not.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED DUE
COURSE. The assailed Decision of the Court of Appeals is AFFIRMED. Costs
against the petitioner.
SO ORDERED.

The petition has no merit.

Under Batas Pambansa Blg. 129, as amended, the Court of Appeals has exclusive
appellate jurisdiction over decisions of the Regional Trial Courts in the exercise of
its original jurisdiction. Under Rule 41, Section 2 of the Rules of Court, as amended,
the aggrieved party may appeal from the said decision by filing a notice of appeal
and paying the requisite docket fees therefor within fifteen days from notice of said
decision. However, the Court of Appeals has no jurisdiction over appeals from the
decision of the Regional Trial Court rendered in the exercise of its original
jurisdiction in cases wherein the issues raised are purely legal. 17 In such a case, the
remedy of the aggrieved party is to appeal the decision via a petition for review on
certiorari in this Court under Rule 45 of the Rules of Court. 

It has been held in a number of cases18 that there is a "question of law" when the
doubt or difference arises as to what the law is on certain state of facts, and which G.R. No. 129742. September 16, 1998.*
does not call for an examination of the probative value of the evidence presented by
the parties-litigants. On the other hand, there is a "question of fact" when the doubt

37
TERESITA G. FABIAN, petitioner, vs. HON. ANIANO A. DESIERTO, in his
capacity as Ombudsman; HON. JESUS F. GUERRERO, in his capacity as
Deputy Ombudsman for Lu-zon; and NESTOR V. AGUSTIN, respondents.
Ombudsman; Administrative Law; Public
Officers; Appeals;Certiorari; Pleadings and Practice; Ombudsman Act of 1989
(Republic Act No. 6770); Section 27 of Republic Act No. 6770 is involved only
whenever an appeal by certiorari under Rule 45 is taken from a decision in an
administrative disciplinary action—it cannot be taken into account where an
original action for certiorari under Rule 65 is resorted to as a remedy for judicial
review, such as from an incident in a criminal action.—Considering, however, the
view that this Court now takes of the case at bar and the issues therein which will
shortly be explained, it refrains from preemptively resolving the controverted points
raised by the parties on the nature and propriety of application of the writ of
certiorari when used as a mode of appeal or as the basis of a special original action,
and whether or not they may be resorted to concurrently or alternatively, obvious
though the  preclude a court from inquiring into its own jurisdiction or compel it to enter a
_______________
*
 EN BANC.
471
VOL. 295, SEPTEMBER 16, 1998  471  unconstitutional, the court has no jurisdiction in the proceeding, and since it may
Fabian vs. Desierto
answers thereto appear to be. Besides, some seemingly obiterstatements
in Yabut and Alba could bear reexamination and clarification. Hence, we will merely
observe and lay down the rule at this juncture that Section 27 of Republic Act No.
6770 is involved only whenever an appeal by certiorari under Rule 45 is taken from a
decision in an administrative disciplinary action. It cannot be taken into account
where an original action for certiorari under Rule 65 is resorted to as a remedy for
judicial review, such as from an incident in a criminal action.
Same; Same; Same; Civil Service Commission; The administrative liability of
a public official could fall under the jurisdiction of both the Civil Service
Commission and the Office of the Ombudsman.—After respondents’ separate
comments had been filed, the Court was intrigued by the fact, which does not appear
to have been seriously considered before, that the administrative liability of a public
official could fall under the jurisdiction of both the Civil Service Commission and
the Office of the Ombudsman. Thus, the offenses imputed to herein private
respondent were based on both Section 19 of Republic Act No. 6770 and Section 36
of Presidential Decree No. 807. Yet, pursuant to the amendment of Section 9, Batas
Pambansa Blg. 129 by Republic Act No. 7902, all adjudications by the Civil Service
Commission in administrative disciplinary cases were made appealable to the Court
of Appeals effective March 18, 1995, while those of the Office of the Ombudsman
are appealable to this Court.
Same; Same; Same; Constitutional Law; Courts; Judicial Review; Statutes;
When it is clear that a statute transgresses the authority vested in a legislative body,
it is the duty of the courts to declare that the constitution, and not the statute,
governs in a case before them for judgment.—Since the constitution is intended for
the observance of the judiciary and other departments of the government and the
judges are sworn to support its provisions, the courts are not at liberty to overlook or
disregard its commands or countenance evasions thereof. When it is clear that a
statute transgresses the authority vested in a legislative body, it is the duty of the
courts to declare that the constitution, and not the statute, governs in a case before
them for judgment.
Same; Same; Same; Same; Same; Same; Same; Jurisdiction;Pleadings and
Practice; While courts will not ordinarily pass upon
472
472  SUPREME COURT REPORTS ANNOTATED 
Fabian vs. Desierto
constitutional questions which are not raised in the pleadings, it does not
judgment that it lacks jurisdiction.—While courts will not ordinarily pass upon
constitutional questions which are not raised in the pleadings, the rule has been
recognized to admit of certain exceptions. It does not preclude a court from inquiring
into its own jurisdiction or compel it to enter a judgment that it lacks jurisdiction to
enter. If a statute on which a court’s jurisdiction in a proceeding depends is
determine whether or not it has jurisdiction, it necessarily follows that it may inquire
into the constitutionality of the statute.
Same; Same; Same; Same; Same; Same; Same; Same; Same;Constitutional
questions, not raised in the regular and orderly procedure in the trial are ordinarily
rejected unless the jurisdiction of the court below or that of the appellate court is
involved in which case it may be raised at any time or on the court’s own motion.—
Constitutional questions, not raised in the regular and orderly procedure in the trial
are ordinarily rejected unless the jurisdiction of the court below or that of the
appellate court is involved in which case it may be raised at any time or on the
court’s own motion. The Court ex mero motu may take cognizance of lack of
jurisdiction at any point in the case where that fact is developed. The court has a
clearly recognized right to determine its own jurisdiction in any proceeding.
Same; Same; Same; Same; Same; Same; Same; Same; Whenever the
legislature intends that the decisions or resolutions of the quasi-judicial agency shall
be reviewable by the Supreme Court or the Court of Appeals, a specific provision to
that effect is included in the law creating that quasi-judicial agency and, for that
matter, any special statutory court.—By jurisprudential developments over the years,
this Court has allowed appeals by certiorari under Rule 45 in a substantial number of
cases and instances even if questions of fact are directly involved and have to be
resolved by the appellate court. Also, the very provision cited by petitioner specifies
that the appellate jurisdiction of this Court contemplated therein is to be exercised
over “final judgments and orders of lower courts,” that is, the courts composing the
integrated judicial system. It does not include the quasi-judicial bodies or agencies,
38
hence whenever the legislature intends that the decisions or resolutions of the quasi-
judicial agency shall be reviewable by the Supreme Court or the Court of Appeals, a  need for that because the Court can rule on the matter sua sponte when its appellate
473
VOL. 295, SEPTEMBER 16, 1998  473  could even be raised any time likewise by reason of the jurisdictional issue
Fabian vs. Desierto
specific provision to that effect is included in the law creating that quasi-
judicial agency and, for that matter, any special statutory court. No such provision on
appellate procedure is required for the regular courts of the integrated judicial system
because they are what are referred to and already provided for in Section 5, Article
VIII of the Constitution.
Same; Same; Same; Same; Same; Same; Same; Same; Appeals from
judgments and final orders of quasi-judicial agencies are now required to be
brought to the Court of Appeals on a verified petition for review, under the
requirements and conditions in Rule 43 which was precisely formulated and adopted
to provide for a uniform rule of appellate procedure for quasi-judicial agencies.—
Under the present Rule 45, appeals may be brought through a petition for review on
certiorari but only from judgments and final orders of the courts enumerated in
Section 1 thereof. Appeals from judgments and final orders of quasi-judicial
agencies are now required to be brought to the Court of Appeals on a verified
petition for review, under the requirements and conditions in Rule 43 which was
precisely formulated and adopted to provide for a uniform rule of appellate
procedure for quasi-judicial agencies.
Same; Same; Same; Same; Same; Same; Same; The jurisdiction of a court is
not a question of acquiescence as a matter of fact but an issue of conferment as a
matter of law.—The submission that because this Court has taken cognizance of
cases involving Section 27 of Republic Act No. 6770, that fact may be viewed as
“acquiescence” or “acceptance” by it of the appellate jurisdiction contemplated in
said Section 27, is unfortunately too tenuous. The jurisdiction of a court is not a
question of acquiescence as a matter of fact but an issue of conferment as a matter of
law. Besides, we have already discussed the cases referred to, including the
inaccuracies of some statements therein, and we have pointed out the instances when
Rule 45 is involved, hence covered by Section 27 of Republic Act No. 6770 now
under discussion, and when that provision would not apply if it is a judicial review
under Rule 65.
Same; Same; Same; Same; Same; Same; Same; The Supreme Court can rule
on a constitutional question sua sponte when its appellate jurisdiction is involved.—
Private respondent invokes the rule that courts generally avoid having to decide a
constitutional question, especially when the case can be decided on other grounds.
As a  substantive. In fact, a particular rule may be procedural in one context and
474
474  SUPREME COURT REPORTS ANNOTATED  is frequently a question of great difficulty. It is not, however, an insurmountable
Fabian vs. Desierto
general proposition that is correct. Here, however, there is an actual case
susceptible of judicial determination. Also, the constitutional question, at the
instance of this Court, was raised by the proper parties, although there was even no
jurisdiction is involved. The constitutional question was timely raised, although it
confronting the Court. Finally, the resolution of the constitutional issue here is
obviously necessary for the resolution of the present case.
Same; Same; Same; Same; Same; Same; Same; Republic Act 6770; Section
27 of Republic Act No. 6770 cannot validly authorize an appeal to the Supreme
Court from decisions of the Office of the Ombudsman in administrative disciplinary
cases—it consequently violates the proscription in Section 30, Article VI of the
Constitution against a law which increases the appellate jurisdiction of the Supreme
Court.—Taking all the foregoing circumstances in their true legal roles and effects,
therefore, Section 27 of Republic Act No. 6770 cannot validly authorize an appeal to
this Court from decisions of the Office of the Ombudsman in administrative
disciplinary cases. It consequently violates the proscription in Section 30, Article VI
of the Constitution against a law which increases the appellate jurisdiction of this
Court. No countervailing argument has been cogently presented to justify such
disregard of the constitutional prohibition which, as correctly explained in First
Lepanto Ceramics, Inc. vs. The Court of Appeals, et al. was intended to give this
Court a measure of control over cases placed under its appellate jurisdiction.
Otherwise, the indiscriminate enactment of legislation enlarging its appellate
jurisdiction would unnecessarily burden the Court.
Same; Same; Same; Same; Same; Same; Same; Pleadings and
Practice; Appeals from decisions of the Office of the Ombudsman in administrative
disciplinary cases should be taken to the Court of Appeals under the provisions of
Rule 43.—As a consequence of our ratiocination that Section 27 of Republic Act No.
6770 should be struck down as unconstitutional, and in line with the regulatory
philosophy adopted in appeals from quasi-judicial agencies in the 1997 Revised
Rules of Civil Procedure, appeals from decisions of the Office of the Ombudsman in
administrative disciplinary cases should be taken to the Court of Appeals under the
provisions of Rule 43.
475
VOL. 295, SEPTEMBER 16, 1998  475 
Fabian vs. Desierto
Courts; Actions; Procedural Rules; It is admitted that what is procedural and
what is substantive is frequently a question of great difficulty.—It will be noted that
no definitive line can be drawn between those rules or statutes which are procedural,
hence within the scope of this Court’s rule-making power, and those which are
substantive in another. It is admitted that what is procedural and what is substantive
problem if a rational and pragmatic approach is taken within the context of our own
procedural and jurisdictional system.
39
 Same; Same; Same; Pleadings and Practice; Supreme Court; In determining PETITION for review on certiorari of a joint order of the Ombudsman and the
whether a rule prescribed by the Supreme Court, for the practice and procedure of Deputy Ombudsman for Luzon.
the lower courts, abridges, enlarges, or modifies any substantive right, the test is
whether the rule really regulates procedure, that is, the judicial process for The facts are stated in the opinion of the Court.
enforcing rights and duties recognized by substantive law and for justly      Estelito P. Mendoza and Virgilio C. Manguera for petitioner.
administering remedy and redress for a disregard or infraction of them.—In      Benjamin C. Santos & Ofelia Calcetas-Santos Law Offices for private
determining whether a rule prescribed by the Supreme Court, for the practice and respondent.
procedure of the lower courts, abridges, enlarges, or modifies any substantive right,      Amador C. Casino collaborating counsel for private respondent.
the test is whether the rule really regulates procedure, that is, the judicial process for
enforcing rights and duties recognized by substantive law and for justly REGALADO, J.:
administering remedy and redress for a disregard or infraction of them. If the rule
takes away a vested right, it is not procedural. If the rule creates a right such as the
Petitioner has appealed to us by certiorari under Rule 45 of the Rules of Court from
right to appeal, it may be classified as a substantive matter; but if it operates as a
the "Joint Order" issued by public respondents on June 18, 1997 in OMB-Adm. Case
means of implementing an existing right then the rule deals merely with procedure.
No. 0-95-0411 which granted the motion for reconsideration of and absolved private
Same; Same; Same; Same; Ombudsman; A transfer by the Supreme Court, in
respondent from administrative charges for inter alia grave misconduct committed
the exercise of its rule-making power, of pending cases involving a review of
by him as then Assistant Regional Director, Region IV-A, Department of Public
decisions of the Office of the Ombudsman in administrative disciplinary actions to
Works and Highways (DPWH).
the Court of Appeals which shall now be vested with exclusive appellate jurisdiction
thereover, relates to procedure only.—In the situation under consideration, a transfer
by the Supreme Court, in the exercise of its rule-making power, of pending cases I
involving a review of decisions of the Office of the Ombudsman in administrative
disciplinary actions to the Court of Appeals which shall now be vested with It appears from the statement and counter-statement of facts of the parties that
exclusive appellate jurisdiction thereover, relates to procedure only. This is so petitioner Teresita G. Fabian was the major stockholder and president of PROMAT
because it is not the right to appeal of an aggrieved party which is affected by  Construction Development Corporation (PROMAT) which was engaged in the
476 construction business. Private respondent Nestor V. Agustin was the incumbent
476  SUPREME COURT REPORTS ANNOTATED  District Engineer of the First Metro Manila Engineering District (FMED) when he
allegedly committed the offenses for which he was administratively charged in the
Fabian vs. Desierto Office of the Ombudsman.
the law. That right has been preserved. Only the procedure by which the
appeal is to be made or decided has been changed. The rationale for this is that no
PROMAT participated in the bidding for government construction projects including
litigant has a vested right in a particular remedy, which may be changed by
those under the FMED, and private respondent, reportedly taking advantage of his
substitution without impairing vested rights, hence he can have none in rules of
official position, inveigled petitioner into an amorous relationship. Their affair lasted
procedure which relate to the remedy.
for some time, in the course of which private respondent gifted PROMAT with
Same; Same; Same; Same; It cannot be said that the transfer of appellate
public works contracts and interceded for it in problems concerning the same in his
jurisdiction to the Court of Appeals is an act of creating a new right of appeal
office.
because such power of the Supreme Court to transfer appeals to subordinate
appellate courts is purely a procedural and not a substantive power.—It cannot be
said that the transfer of appellate jurisdiction to the Court of Appeals in this case is Later, misunderstandings and unpleasant incidents developed between the parties and
an act of creating a new right of appeal because such power of the Supreme Court to when petitioner tried to terminate their relationship, private respondent refused and
transfer appeals to subordinate appellate courts is purely a procedural and not a resisted her attempts to do so to the extent of employing acts of harassment,
substantive power. Neither can we consider such transfer as impairing a vested right intimidation and threats. She eventually filed the aforementioned administrative case
because the parties have still a remedy and still a competent tribunal to administer against him in a letter-complaint dated July 24, 1995.
that remedy.
The said complaint sought the dismissal of private respondent for violation of
Section 19, Republic Act No. 6770 (Ombudsman Act of 1989) and Section 36 of
Presidential Decree No. 807 (Civil Service Decree), with an ancillary prayer for his
40
preventive suspension. For purposes of this case, the charges referred to may be
subsumed under the category of oppression, misconduct, and disgraceful or immoral
conduct.
On January 31, 1996, Graft Investigator Eduardo R. Benitez issued a resolution
finding private respondent guilty of grave misconduct and ordering his dismissal
from the service with forfeiture of all benefits under the law. His resolution bore the
approval of Director Napoleon Baldrias and Assistant Ombudsman Abelardo
Aportadera of their office.
Herein respondent Ombudsman, in an Order dated February 26, 1996, approved the
aforesaid resolution with modifications, by finding private respondent guilty of
misconduct and meting out the penalty of suspension without pay for one year. After
private respondent moved for reconsideration, respondent Ombudsman discovered
that the former's new counsel had been his "classmate and close associate" hence he
inhibited himself. The case was transferred to respondent Deputy Ombudsman Jesus
F. Guerrero who, in the now challenged Joint Order of June 18, 1997, set aside the
February 26, 1997 Order of respondent Ombudsman and exonerated private
respondent from the administrative charges.
II
In the present appeal, petitioner argues that Section 27 of Republic Act No. 6770
(Ombudsman Act of 1989) 1pertinently provides that —
In all administrative disciplinary cases, orders, directives or
decisions of the Office of the Ombudsman may be appealed to the
Supreme Court by filing a petition for certiorari within ten (10)
days from receipt of the written notice of the order, directive or
decision or denial of the motion for reconsideration in accordance
with Rule 45 of the Rules of Court (Emphasis supplied)
However, she points out that under Section 7, Rule III of Administrative Order No.
07 (Rules of Procedure of the Office of the Ombudsman), 2 when a respondent is
absolved of the charges in an administrative proceeding the decision of the
Ombudsman is final and unappealable. She accordingly submits that the Office of
the Ombudsman has no authority under the law to restrict, in the manner provided in
its aforesaid Rules, the right of appeal allowed by Republic Act No. 6770, nor to
limit the power of review of this Court. Because of the aforecited provision in those
Rules of Procedure, she claims that she found it "necessary to take an alternative
recourse under Rule 65 of the Rules of Court, because of the doubt it creates on the
availability of appeal under Rule 45 of the Rules of Court.
Respondents filed their respective comments and rejoined that the Office of the
Ombudsman is empowered by the Constitution and the law to promulgate its own
rules of procedure. Section 13(8), Article XI of the 1987 Constitution provides,
among others, that the Office of the Ombudsman can "(p)romulgate its rules of
procedure and exercise such other powers or perform such functions or duties as may
be provided by law."
Republic Act No. 6770 duly implements the Constitutional mandate with these
relevant provisions:
Sec. 14. Restrictions. — . . . No court shall hear any appeal or
application for remedy against the decision or findings of the
Ombudsman except the Supreme Court on pure questions of law.
x x x           x x x          x x x
Sec. 18. Rules of Procedure. — (1) The Office of the Ombudsman
shall promulgate its own rules of procedure for the effective
exercise or performance of its powers, functions, and duties.
x x x           x x x          x x x
Sec. 23. Formal Investigation. — (1) Administrative investigations
by the Office of the Ombudsman shall be in accordance with its
rules of procedure and consistent with due process. . . . .
x x x           x x x          x x x
Sec. 27. Effectivity and Finality of Decisions. — All previsionary
orders at the Office of the Ombudsman are immediately effective
and executory.
A motion for reconsideration of any order, directive or decision of
the Office of the Ombudsman must be filed within five (5) days
after receipt of written notice and shall be entertained only on any
of the following grounds:
x x x           x x x          x x x
Findings of fact by the Office of the Ombudsman when supported
by substantial evidence are conclusive. Any order, directive or
decision imposing the penalty of public censure or reprimand,
41
 suspension of not more than one month salary shall be final and
unappealable.
In all administrative disciplinary cases, orders, directives or
decisions of the Office of the Ombudsman may be appealed to the
Supreme Court by filing a petition for certiorari within ten (10)
days from receipt of the written notice of the order, directive or
decision or denial of the motion for reconsideration in accordance
with Rule 45 of the Rules of Court.
The above rules may be amended or modified by the Office of the
Ombudsman as the interest of justice may require.
Respondents consequently contend that, on the foregoing constitutional and statutory
authority, petitioner cannot assail the validity of the rules of procedure formulated by
the Office of the Ombudsman governing the conduct of proceedings before it,
including those rules with respect to the availability or non-availability of appeal in
administrative cases, such as Section 7, Rule III of Administrative Order No. 07.
Respondents also question the propriety of petitioner's proposition that, although she
definitely prefaced her petition by categorizing the same as "an appeal
by certiorari under Rule 45 of the Rules of Court," she makes the aforequoted
ambivalent statement which in effect asks that, should the remedy under Rule 45 be
unavailable, her petition be treated in the alternative as an original action
for certiorari under Rule 65. The parties thereafter engage in a discussion of the
differences between a petition for review on certiorari under Rule 45 and a special
civil action of certiorari under Rule 65.
Ultimately, they also attempt to review and rationalize the decisions of this Court
applying Section 27 of Republic Act. No. 6770 vis-a-vis Section 7, Rule III of
Administrative Order No. 07. As correctly pointed out by public
respondent, Ocampo IV vs. Ombudsman, et al.3 and Young vs. Office of the
Ombudsman, et al.4 were original actions for certiorari under Rule 65. Yabut vs.
Office of the Ombudsman, et al. 5 was commenced by a petition for review
on certiorari under Rule 45. Then came Cruz, Jr. vs. People, et al.,6 Olivas vs. Office
of the Ombudsman, et al.,7 Olivarez vs. Sandiganbayan, et al.,8 and Jao, et al. vs.
Vasquez,9 which were for certiorari, prohibition and/or mandamus under Rule
65. Alba vs. Nitorreda, et al. 10 was initiated by a pleading unlikely denominated as
an "Appeal/Petition for Certiorari and/or Prohibition," with a prayer for ancillary
remedies, and ultimately followed by Constantino vs. Hon. Ombudsman Aniano
Desierto, et al. 11 which was a special civil action for certiorari.
Considering, however, the view that this Court now takes of the case at bar and the
issues therein which will shortly be explained, it refrains from preemptively
resolving the controverted points raised by the parties on the nature and propriety of
application of the writ of certiorari when used as a mode of appeal or as the basis of
a special original action, and whether or not they may be resorted to concurrently or
alternatively, obvious though the answers thereto appear to be. Besides, some
seemingly obiter statements in Yabut and Alba could bear reexamination and
clarification. Hence, we will merely observe and lay down the rule at this juncture
that Section 27 of Republic Act No. 6770 is involved only whenever an appeal
by certiorari under Rule 45 is taken from a decision in an administrative disciplinary
action. It cannot be taken into account where an original action for certiorari under
Rule 65 is resorted to as a remedy for judicial review, such as from an incident in a
criminal action.
III
After respondents' separate comments had been filed, the Court was intrigued by the
fact, which does not appear to have been seriously considered before, that the
administrative liability of a public official could fall under the jurisdiction of both the
Civil Service Commission and the Office of the Ombudsman. Thus, the offenses
imputed to herein private respondent were based on both Section 19 of Republic Act
No. 6770 and Section 36 of Presidential Decree No. 807. Yet, pursuant to the
amendment of Section 9, Batas Pambansa Blg. 129 by Republic Act No. 7902, all
adjudications by the Civil Service Commission in administrative disciplinary cases
were made appealable to the Court of Appeals effective March 18, 1995, while those
of the Office of the Ombudsman are appealable to this Court.
It could thus be possible that in the same administrative case involving two
respondents, the proceedings against one could eventually have been elevated to the
Court of Appeals, while the other may have found its way to the Ombudsman from
which it is sought to be brought to this Court. Yet systematic and efficient case
management would dictate the consolidation of those cases in the Court of Appeals,
both for expediency and to avoid possible conflicting decisions.
Then there is the consideration that Section 30, Article VI of the 1987 Constitution
provides that "(n)o law shall be passed increasing the appellate jurisdiction of the
Supreme Court as provided in this Constitution without its advice and consent," and
that Republic Act No. 6770, with its challenged Section 27, took effect on November
17, 1989, obviously in spite of that constitutional prohibition. The conventional rule,
however, is that a challenge on constitutional grounds must be raised by a party to
the case, neither of whom did so in this case, but that is not an inflexible rule, as we
shall explain.
Since the constitution is intended for the observance of the judiciary and other
departments of the government and the judges are sworn to support its provisions;
the courts are not at liberty to overlook or disregard its commands or countenance
42
evasions thereof. When it is clear that a statute transgresses the authority vested in a
legislative body, it is the duty of the courts to declare that the constitution, and not
the statute, governs in a case before them for
judgment. 12
Thus, while courts will not ordinarily pass upon constitutional questions which are
not raised in the pleadings, 13 the rule has been recognized to admit of certain
exceptions. It does not preclude a court from inquiring into its own jurisdiction or
compel it to enter a judgment that it lacks jurisdiction to enter. If a statute on which a
court's jurisdiction in a proceeding depends is unconstitutional, the court has no
jurisdiction in the proceeding, and since it may determine whether or not it has
jurisdiction, it necessarily follows that it may inquire into the constitutionality of the
statute. 14
Constitutional questions, not raised in the regular and orderly procedure in the trial
are ordinarily rejected unless the jurisdiction of the court below or that of the
appellate court is involved in which case it may be raised at any time or on the
court's own motion. 15 The Court ex mero motu may take cognizance of lack of
jurisdiction at any point in the case where that fact is developed. 16 The court has a
clearly recognized right to determine its own jurisdiction in any proceeding. 17
The foregoing authorities notwithstanding, the Court believed that the parties hereto
should be further heard on this constitutional question. Correspondingly, the
following resolution was issued on May 14, 1998, the material parts stating as
follows:
The Court observes that the present petition, from the very
allegations thereof, is "an appeal by certiorari under Rule 45 of the
Rules of Court from the "Joint Order (Re: Motion for
Reconsideration)" issued in OMB-Adm. Case No. 0-95-0411,
entitled "Teresita G. Fabian vs. Engr. Nestor V. Agustin, Asst.
Regional Director, Region IV-A, EDSA, Quezon City," which
absolved the latter from the administrative charges for grave
misconduct, among others.
It is further averred therein that the present appeal to this Court is
allowed under Section 27 of the Ombudsman Act of 1987 (R.A.
No. 6770) and, pursuant thereto, the Office of the Ombudsman
issued its Rules of Procedure, Section 7 whereof is assailed by
petitioner in this proceeding. It will be recalled that R.A. No. 6770
was enacted on November 17, 1989, with Section 27 thereof
pertinently providing that all administrative disciplinary cases,
orders, directives or decisions of the Office of the Ombudsman
may be appealed to this Court in accordance with Rule 45 of the
Rules of Court.
The Court notes, however, that neither the petition nor the two
comments thereon took into account or discussed the validity of
the aforestated Section 27 of R.A. No. 8770 in light of the
provisions of Section 30, Article VI of the 1987 Constitution that
"(n)o law shall be passed increasing the appellate jurisdiction of
the Supreme Court as provided in this Constitution without its
advice and consent."
The Court also invites the attention of the parties to its relevant
ruling in First Lepanto Ceramics, Inc. vs. The Court of Appeals, et
al. (G.R. No. 110571, October 7, 1994, 237 SCRA 519) and the
provisions of its former Circular No. 1-91 and Revised
Administrative Circular No. 1-95, as now substantially reproduced
in Rule 43 of the 1997 revision of the Rules of Civil Procedure.
In view of the fact that the appellate jurisdiction of the Court is
invoked and involved in this case, and the foregoing legal
considerations appear to impugn the constitutionality and validity
of the grant of said appellate jurisdiction to it, the Court deems it
necessary that the parties be heard thereon and the issue be first
resolved before conducting further proceedings in this appellate
review.
ACCORDINGLY, the Court Resolved to require the parties to
SUBMIT their position and arguments on the matter subject of this
resolution by filing their corresponding pleadings within ten (10)
days from notice hereof.
IV
The records do not show that the Office of the Solicitor General has complied with
such requirement, hence the Court dispenses with any submission it should have
presented. On the other hand, petitioner espouses the theory that the provision in
Section 27 of Republic Act No. 6770 which authorizes an appeal by certiorari to this
Court of the aforementioned adjudications of the Office of the Ombudsman is not
violative of Section 30, Article VI of the Constitution. She claims that what is
proscribed is the passage of a law "increasing" the appellate jurisdiction of this Court
"as provided in this Constitution," and such appellate jurisdiction includes "all cases
in which only an error or question of law is involved." Since Section 5(2)(e), Article
VIII of the Constitution authorizes this Court to review, revise, reverse, modify, or
affirm on appeal or certiorari the aforesaid final judgment or orders "as the law or
43
the Rules of Court may provide," said Section 27 does not increase this Court's
appellate jurisdiction since, by providing that the mode of appeal shall be by petition
for certiorari under Rule 45, then what may be raised therein are only questions of
law of which this Court already has jurisdiction.
We are not impressed by this discourse. It overlooks the fact that by jurisprudential
developments over the years, this Court has allowed appeals by certiorari under Rule
45 in a substantial number of cases and instances even if questions of fact are
directly involved and have to be resolved by the appellate court. 18 Also, the very
provision cited by petitioner specifies that the appellate jurisdiction of this Court
contemplated therein is to be exercised over "final judgments and orders of lower
courts," that is, the courts composing the integrated judicial system. It does not
include the quasi-judicial bodies or agencies, hence whenever the legislature intends
that the decisions or resolutions of the quasi-judicial agency shall be reviewable by
the Supreme Court or the Court of Appeals, a specific provision to that effect is
included in the law creating that quasi-judicial agency and, for that matter, any
special statutory court. No such provision on appellate procedure is required for the
regular courts of the integrated judicial system because they are what are referred to
and already provided for, in Section 5, Article VIII of the Constitution.
Apropos to the foregoing, and as correctly observed by private respondent, the
revised Rules of Civil Procedure 19preclude appeals from quasi-judicial agencies to
the Supreme Court via a petition for review on certiorari under Rule 45. In the 1997
Rules of Civil Procedure, Section 1 of Rule 45, on "Appeal by Certiorari to the
Supreme Court," explicitly states:
Sec. 1. Filing of petition with Supreme Court. — A person desiring
to appeal by certiorari from a judgment or final order or resolution
of the Court of Appeals, the Sandiganbayan, the Regional Trial
Court or other courts whenever authorized by law, may file with
the Supreme Court a verified petition for review on certiorari. The
petition shall raise only questions of law which must be distinctly
set forth. (Emphasis ours).
This differs from the former Rule 45 of the 1964 Rules of Court which made
mention only of the Court of Appeals, and had to be adopted in statutes creating and
providing for appeals from certain administrative or quasi-judicial agencies,
whenever the purpose was to restrict the scope of the appeal to questions of law. That
intended limitation on appellate review, as we have just discussed, was not fully
subserved by recourse to the former Rule 45 but, then, at that time there was no
uniform rule on appeals from quasi-judicial agencies.
Under the present Rule 45, appeals may be brought through a petition for review
on certiorari but only from judgments and final orders of the courts enumerated in
Section 1 thereof. Appeals from judgments and final orders of quasi-judicial
agencies 20 are now required to be brought to the Court of Appeals on a verified
petition for review, under the requirements and conditions in Rule 43 which was
precisely formulated and adopted to provide for a uniform rule of appellate
procedure for quasi-judicial agencies. 21
It is suggested, however, that the provisions of Rule 43 should apply only to
"ordinary" quasi-judicial agencies, but not to the Office of the Ombudsman which is
a "high constitutional body." We see no reason for this distinction for, if hierarchical
rank should be a criterion, that proposition thereby disregards the fact that Rule 43
even includes the Office of the President and the Civil Service Commission,
although the latter is even an independent constitutional commission, unlike the
Office of the Ombudsman which is a constitutionally-mandated but statutorily
created body.
Regarding the misgiving that the review of the decision of the Office of the
Ombudsman by the Court of Appeals would cover questions of law, of fact or of
both, we do not perceive that as an objectionable feature. After all, factual
controversies are usually involved in administrative disciplinary actions, just like
those coming from the Civil Service Commission, and the Court of Appeals as a trier
of fact is better prepared than this Court to resolve the same. On the other hand, we
cannot have this situation covered by Rule 45 since it now applies only to appeals
from the regular courts. Neither can we place it under Rule 65 since the review
therein is limited to jurisdictional questions. *
The submission that because this Court has taken cognizance of cases involving
Section 27 of Republic Act No. 6770, that fact may be viewed as "acquiescence" or
"acceptance" by it of the appellate jurisdiction contemplated in said Section 27, is
unfortunately too tenuous. The jurisdiction of a court is not a question of
acquiescence as a matter of fact but an issue of conferment as a matter of law.
Besides, we have already discussed the cases referred to, including the inaccuracies
of some statements therein, and we have pointed out the instances when Rule 45 is
involved, hence covered by Section 27 of Republic Act No. 6770 now under
discussion, and when that provision would not apply if it is a judicial review under
Rule 65.
Private respondent invokes the rule that courts generally avoid having to decide a
constitutional question, especially when the case can be decided on other grounds.
As a general proposition that is correct. Here, however, there is an actual case
susceptible of judicial determination. Also, the constitutional question, at the
instance of this Court, was raised by the proper parties, although there was even no
need for that because the Court can rule on the matter sua sponte when its appellate
jurisdiction is involved. The constitutional question was timely raised, although it
could even be raised any time likewise by reason of the jurisdictional issue
44
confronting the Court. Finally, the resolution of the constitutional issue here is
obviously necessary for the resolution of the present case. 22
It is, however, suggested that this case could also be decided on other grounds, short
of passing upon the constitutional question. We appreciate the ratiocination of
private respondent but regret that we must reject the same. That private respondent
could be absolved of the charge because the decision exonerating him is final and
unappealable assumes that Section 7, Rule III of Administrative Order No. 07 is
valid, but that is precisely one of the issues here. The prevailing rule that the Court
should not interfere with the discretion of the Ombudsman in prosecuting or
dismissing a complaint is not applicable in this administrative case, as earlier
explained. That two decisions rendered by this Court supposedly imply the validity
of the aforementioned Section 7 of Rule III is precisely under review here because of
some statements therein somewhat at odds with settled rules and the decisions of this
Court on the same issues, hence to invoke the same would be to beg the question.
V decisions of the Office of the Ombudsman may be appealed to the
Taking all the foregoing circumstances in their true legal roles and effects, therefore,
Section 27 of Republic Act No. 6770 cannot validly authorize an appeal to this Court
from decisions of the Office of the Ombudsman in administrative disciplinary cases.
It consequently violates the proscription in Section 30, Article VI of the Constitution
against a law which increases the appellate jurisdiction of this Court. No
countervailing argument has been cogently presented to justify such disregard of the
constitutional prohibition which, as correctly explained in First Lepanto Ceramics,
Inc. vs. The Court of Appeals, et al. 23 was intended to give this Court a measure of
control over cases placed under its appellate jurisdiction. Otherwise, the
indiscriminate enactment of legislation enlarging its appellate jurisdiction would
unnecessarily burden the Court. 24
We perforce have to likewise reject the supposed inconsistency of the ruling in First
Lepanto Ceramics and some statements in Yabut and Alba, not only because of the
difference in the factual settings, but also because those isolated cryptic statements
in Yabut and Alba should best be clarified in the adjudication on the merits of this
case. By way of anticipation, that will have to be undertaken by the proper court of
competent jurisdiction.
Furthermore, in addition to our preceding discussion on whether Section 27 of
Republic Act No. 6770 expanded the jurisdiction of this Court without its advice and
consent, private respondent's position paper correctly yields the legislative
background of Republic Act No. 6770. On September 26, 1989, the Conference
Committee Report on S.B. No. 453 and H.B. No. 13646, setting forth the new
version of what would later be Republic Act No. 6770, was approved on second
reading by the House of Representatives. 25 The Senate was informed of the approval
of the final version of the Act on October 2, 1989 26 and the same was thereafter
enacted into law by President Aquino on November 17, 1989.
Submitted with said position paper is an excerpt showing that the Senate, in the
deliberations on the procedure for appeal from the Office of the Ombudsman to this
Court, was aware of the provisions of Section 30, Article III of the Constitution. It
also reveals that Senator Edgardo Angara, as a co-author and the principal sponsor of
S.B. No. 543 admitted that the said provision will expand this Court's jurisdiction,
and that the Committee on Justice and Human Rights had not consulted this Court on
the matter, thus:
INTERPELLATION OF SENATOR SHAHANI
x x x           x x x          x x x
Thereafter, with reference to Section 22(4) which provides that the
Supreme Court, in reply to Senator Shahani's query whether the
Supreme Court would agree to such provision in the light of
Section 30, Article VI of the Constitution which requires its advice
and concurrence in laws increasing its appellate jurisdiction,
Senator Angara informed that the Committee has not yet consulted
the Supreme Court regarding the matter. He agreed that the
provision will expand the Supreme Court's jurisdiction by allowing
appeals through petitions for review, adding that they should be
appeals on certiorari. 27
There is no showing that even up to its enactment, Republic Act No. 6770
was ever referred to this Court for its advice and consent. 28
VI
As a consequence of our ratiocination that Section 27 of Republic Act No. 6770
should be struck down as unconstitutional, and in line with the regulatory philosophy
adopted in appeals from quasi-judicial agencies in the 1997 Revised Rules of Civil
Procedure, appeals from decisions of the Office of the Ombudsman in administrative
disciplinary cases should be taken to the Court of Appeals under the provisions of
Rule 43.
There is an intimation in the pleadings, however, that said Section 27 refers to
appellate jurisdiction which, being substantive in nature, cannot be disregarded by
this Court under its rule-making power, especially if it results in a diminution,
increase or modification of substantive rights. Obviously, however, where the law is
45
procedural in essence and purpose, the foregoing consideration would not pose a
proscriptive issue against the exercise of the rule-making power of this Court. This
brings to fore the question of whether Section 27 of Republic Act No. 6770 is
substantive or procedural.
It will be noted that no definitive line can be drawn between those rules or statutes
which are procedural, hence within the scope of this Court's rule-making power, and
those which are substantive. In fact, a particular rule may be procedural in one
context and substantive in another. 29 It is admitted that what is procedural and what
is substantive is frequently a question of great
difficulty. 30 It is not, however, an insurmountable problem if a rational and
pragmatic approach is taken within the context of our own procedural and
jurisdictional system.
In determining whether a rule prescribed by the Supreme Court, for the practice and
procedure of the lower courts, abridges, enlarges, or modifies any substantive right,
the test is whether the rule really regulates procedure, that is, the judicial process for
enforcing rights and duties recognized by substantive law and for justly
administering remedy and redress for a disregard or infraction of them. 31 If the rule
takes away a vested right, it is no; procedural. If the rule creates a right such as the
right to appeal, it may be classified as a substantive matter; but if it operates as a
means of implementing an existing right then the rule deals merely with procedure. 32
In the situation under consideration, a transfer by the Supreme Court, in the exercise
of its rule-making power, of pending cases involving a review of decisions of the
Office of the Ombudsman in administrative disciplinary actions to the Court of
Appeals which shall now be vested with exclusive appellate jurisdiction thereover,
relates to procedure only. 33 This is so because it is not the right to appeal of an
aggrieved party which is affected by the law. That right has been preserved. Only
the procedure by which the appeal is to be made or decided has been changed. The
rationale for this is that no litigant has a vested right in a particular remedy, which
may be changed by substitution without impairing vested rights, hence he can have
none in rules of procedure which relate to the remedy. 34
Furthermore, it cannot be said that the transfer of appellate jurisdiction to the Court
of Appeals in this case is an act of creating a new right of appeal because such power
of the Supreme Court to transfer appeals to subordinate appellate courts is purely a
procedural and not a substantive power. Neither can we consider such transfer as
impairing a vested right because the parties have still a remedy and still a competent
tribunal to administer that remedy. 35
Thus, it has been generally held that rules or statutes involving a transfer of cases
from one court to another, are procedural and remedial merely and that, as such, they
are applicable to actions pending at the time the statute went into effect 36 or, in the
case at bar, when its invalidity was declared. Accordingly, even from the standpoint
of jurisdiction ex hypothesi, the validity of the transfer of appeals in said cases to the
Court of Appeals can be sustained.
WHEREFORE, Section 27 of Republic Act No. 6770 (Ombudsman Act of 1989),
together with Section 7, Rule III of Administrative Order No. 07 (Rules of Procedure
of the Office of the Ombudsman), and any other provision of law or issuance
implementing the aforesaid Act and insofar as they provide for appeals in
administrative disciplinary cases from the Office of the Ombudsman to the Supreme
Court, are hereby declared INVALID and of no further force and effect.
The instant petition is hereby referred and transferred to the Court of Appeals for
final disposition, with said petition to be considered by the Court of Appeals pro hoc
vice as a petition for review under Rule 43, without prejudice to its requiring the
parties to submit such amended or supplemental pleadings and additional documents
or records as it may deem necessary and proper. SO ORDERED.
G.R. No. 147995. March 4, 2004.*
JESSIE MACALALAG, petitioner, vs. OMBUDSMAN, PABLO ALORO and
COURT OF APPEALS, respondents.
Actions; Pleadings and Practice; Annulment of Judgments; Grounds; The
rule covers annulment by the Court of Appeals of judgments or final orders and
resolutions in civil actions of Regional Trial Courts.—Rule 47, entitled “Annulment
of Judgments or Final Orders and Resolutions,” is a new provision under the 1997
Rules of Civil Procedure albeitthe remedy has long been given imprimatur by the
courts. The rule covers “annulment by the Court of Appeals of judgments or final
orders and resolutions in civil actions of Regional Trial Courts for which the
ordinary remedies of new trial, appeal, petition for relief or other appropriate
remedies could no longer be availed of through no fault of the petitioner.” An action
for annulment of judgment is a remedy in law independent of the case where the
judgment sought to be annulled is rendered. The concern that the remedy could so
easily be resorted to as an instrument to delay a final and executory judgment, has
prompted safeguards to be put in place in order to avoid an abuse of the rule. Thus,
the annulment of judgment may be based only on the grounds of extrinsic fraud and
lack of jurisdiction, and the remedy may not be invoked (1) where the party has
availed himself of the remedy of new trial, appeal, petition for relief or other
appropriate remedy 
_______________
*
 THIRD DIVISION.
742
742  SUPREME COURT REPORTS ANNOTATED 
Macalalag vs. Ombudsman
46
 and lost therefrom, or (2) where he has failed to avail himself of those
remedies through his own fault or negligence.
Courts; Jurisdiction; Ombudsman; Appeals; All appeals from decisions of the
Ombudsman in administrative disciplinary cases are instead to be taken to the Court
of Appeals under Rule 43 of the 1997 Rules of Civil Procedure.—Section 27 of
Republic Act No. (R.A.) 6770, also known as The Ombudsman Act of 1989,
provides that orders, directives and decisions of the Ombudsman in administrative
cases are appealable to the Supreme CourtviaRule 45 of the Rules of Court.
In Fabian v. Desierto, the Court has declared Section 27 of the Act to be
unconstitutional since it expands the Supreme Court’s jurisdiction without its advice
and consent required under Article VI, Section 30, of the 1987 Constitution. Hence,
all appeals from decisions of the Ombudsman in administrative disciplinary cases are
instead to be taken to the Court of Appeals under Rule 43 of the 1997 Rules of Civil
Procedure. The rule is reiterated in Administrative Circular No. 99-2-01-SC.
Same; Same; Same; Same; R.A. 6770 is silent on the remedy of annulment of
judgments or final orders and resolutions of the Ombudsman in the administrative
cases.—Parenthetically, R.A. 6770 is silent on the remedy of annulment of
judgments or final orders and resolutions of the Ombudsman in administrative cases.
In Tirol, Jr. v. Del Rosario, the Court has held that since The Ombudsman Act
specifically deals with the remedy of an aggrieved party from orders, directives and
decisions of the Ombudsman in administrative disciplinary cases only, the right to
appeal is not to be considered granted to parties aggrieved by orders and decisions of
the Ombudsman in criminal or non-administrative cases. The right to appeal is a
mere statutory privilege and may be exercised only in the manner prescribed by, and
in accordance with, the provisions of law. There must then be a law expressly
granting such right. This legal axiom is also applicable and even more true in actions
for annulment of judgments which is an exception to the rule on finality of
judgments.
Attorneys; Duties; Gross Negligence; It is only in case of gross or palpable
negligence of counsel when the courts can step in and accord relief to a client who
would have suffered thereby.—It is only in case of gross or palpable negligence of
counsel when the courts can step in and accord relief to a client who would have
suffered thereby.If every perceived mistake, failure of diligence, lack of experience
or insufficient legal knowledge of the lawyer would be admitted as a reason for the
reopening of a case, there would be no end to controversy. Fundamental to our
judicial system is the principle that every litigation must come to an end. It would be
a clear mockery if it were otherwise. Access to the courts is guaranteed, but there
must be a limit to it.
743
VOL. 424, MARCH 4, 2004  743  "Nonetheless, the private-respondent executed an affidavit of desistance for
Macalalag vs. Ombudsman
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
     Edilberto B. Cosca for petitioner.
VITUG, J.:
The elemental issue in the petition for review is whether or not the Court of Appeals
has jurisdiction over actions for annulment of decisions or orders of the Ombudsman
in administrative cases.
The factual antecedents of the case, summarized by the appellate court, are basically
undisputed –
"x x x on February 3, 1997, private respondent Pablo Aloro lodged with the
Office of the Ombudsman for Visayas a complaint for dishonesty against
the petitioner Jessie Macalalag, an employee of the Philippine Postal
Corporation, Bacolod City. The petitioner was directed to file his answer
through Orders dated February 18, July 7, and November 13, 1997 and
April 24, 1998 but he did not bother to file any. Instead, when the case was
called for preliminary conference on 27 October 1998, he sent a telegram
requesting for postponement and praying that he be allowed to submit his
position paper after which the case shall be deemed submitted for
resolution. Again, no position paper was ever submitted by him.
Accordingly, the investigator was constrained to resolve the case on the
basis solely of the evidence furnished by the private respondent.
"It was established that the private respondent, a resident of Bacolod City, is
a retired employee receiving a monthly pension from the Social Security
System. As of September 15, 1996, however, he failed to receive his
pension checks corresponding to the months of April, May and July, 1996.
When he went to Bacolod City Post Office to verify about the matter, he
learned that his missing checks were taken by the petitioner, an employee of
the Philippine Postal Corporation in Bacolod City, who endorsed and
encashed them for his personal benefit. When confronted by the private
respondent, the petitioner issued to the former his personal check in the
amount of P7,320.00 in payment of the checks. However, when the private
complainant presented the check for payment, it was dishonored by the
drawee bank for having been drawn against insufficient funds.
the purpose of seeking the dismissal of the case against the petitioner. But
said affidavit was rejected and, instead, the petitioner was declared
administratively liable and ordered dismissed from the service with
forfeiture of all benefits and disqualification from government service. The
petitioner sought a consideration but the same was denied.
47
 "The petitioner next appealed to the Supreme Court by way of a petition for
review on certiorari. However, in the light of the decision in Fabian vs.
Desierto, [(295 SCRA 470) 1998] and Administrative Circular No. 99-2-01-
SC, the appeal was dismissed.
"In the interim, the adverse Ombudsman decision attained finality."1  administrative cases are appealable to the Supreme Court via Rule 45 of the Rules of
Petitioner filed an action for annulment of judgment with the Court of Appeals on the
ground that "the gross ignorance, negligence and incompetence of petitioner's former
lawyer deprived petitioner of his day in court which (would) justify the annulment of
the assailed Resolution and Order." The appellate court, however, dismissed the
petition for lack of jurisdiction thereover; it ratiocinated:
"x x x Under Section 9 (2) of B.P. Blg. 129, this Court has exclusive
original jurisdiction only over actions for annulment of judgments of the
Regional Trial Courts. Nothing is mentioned therein about judgments of
other courts, much less of the Ombudsman or any quasi-judicial body. The
case of Fabian v. Desierto, 295 SCRA 470 (1998), vested this Court only
with exclusive appellate jurisdiction to review decisions of the Office of
the Ombudsman in administrative disciplinary actions which should be
taken via a petition for review under Rule 43 of the 1997 Rules of Civil
Procedure."2  with, the provisions of law.10 There must then be a law expressly granting such
Undaunted, petitioner has filed the instant petition for review, arguing that Section
47 of the Rules of Court on annulment of judgments, refers to "Regional Trial
Courts" in its generic sense that should thus include quasi-judicial bodies whose
functions or rank are co-equal with those of the Regional Trial Court.
Petitioner's thesis finds no support in law and jurisprudence.
Rule 47, entitled "Annulment of Judgments or Final Orders and Resolutions," is a
new provision under the 1997 Rules of Civil Procedure albeit the remedy has long
been given imprimatur by the courts.3 The rule covers "annulment by the Court of
Appeals of judgments or final orders and resolutions in civil actions of Regional
Trial Courts for which the ordinary remedies of new trial, appeal, petition for relief
or other appropriate remedies could no longer be availed of through no fault of the
petitioner."4 An action for annulment of judgment is a remedy in law independent of
the case where the judgment sought to be annulled is rendered. 5 The concern that the
remedy could so easily be resorted to as an instrument to delay a final and executory
judgment,6 has prompted safeguards to be put in place in order to avoid an abuse of
the rule. Thus, the annulment of judgment may be based only on the grounds of
extrinsic fraud and lack of jurisdiction,7 and the remedy may not be invoked (1)
where the party has availed himself of the remedy of new trial, appeal, petition for
relief or other appropriate remedy and lost therefrom, or (2) where he has failed to
avail himself of those remedies through his own fault or negligence.
Section 27 of Republic Act No. (R.A.) 6770, also known as The Ombudsman Act of
1989, provides that orders, directives and decisions of the Ombudsman in
Court. In Fabian v. Desierto8 , the Court has declared Section 27 of the Act to be
unconstitutional since it expands the Supreme Court's jurisdiction without its advice
and consent required under Article VI, Section 30, of the 1987 Constitution. Hence,
all appeals from decisions of the Ombudsman in administrative disciplinary cases are
instead to be taken to the Court of Appeals under Rule 43 of the 1997 Rules of Civil
Procedure. The rule is reiterated in Administrative Circular No. 99-2-01-SC.
Parenthetically, R.A. 6770 is silent on the remedy of annulment of judgments or final
orders and resolutions of the Ombudsman in administrative cases. In Tirol, Jr. v. Del
Rosario,9 the Court has held that since The Ombudsman Act specifically deals with
the remedy of an aggrieved party from orders, directives and decisions of the
Ombudsman in administrative disciplinary cases only, the right to appeal is not to be
considered granted to parties aggrieved by orders and decisions of the Ombudsman
in criminal or non-administrative cases. The right to appeal is a mere statutory
privilege and may be exercised only in the manner prescribed by, and in accordance
right.11 This legal axiom is also applicable and even more true in actions for
annulment of judgments which is an exception to the rule on finality of judgments.
Moreover, petitioner may no longer resort to the remedy of annulment of judgment
after having filed an appeal with the Supreme Court. Neither can he claim that he is
not bound by his lawyer's actions; it is only in case of gross or palpable negligence of
counsel when the courts can step in and accord relief to a client who would have
suffered thereby.12 If every perceived mistake, failure of diligence, lack of experience
or insufficient legal knowledge of the lawyer would be admitted as a reason for the
reopening of a case, there would be no end to controversy. Fundamental to our
judicial system is the principle that every litigation must come to an end. It would be
a clear mockery if it were otherwise. Access to the courts is guaranteed, but there
must be a limit to it.
WHEREFORE, the petition is DISMISSED and the decision, dated 24 January
2001, of the Court of Appeals in CA-G.R. SP No. 59361 is AFFIRMED. Costs
against petitioner.
SO ORDERED.
48

G.R. No. 134509. April 12, 2005.*
VENANCIO R. NAVA, petitioner, vs. NATIONAL BUREAU OF
INVESTIGATION, REGIONAL OFFICE NO. XI, DAVAO CITY, respondent.
Courts; Ombudsman; Appeals; Jurisdictions; Although as a consequence of
the decision in Fabian, appeals from the orders, directives, or decisions of the
Ombudsman in administrative cases are now cognizable by the Court of Appeals,
nevertheless in cases in which it is alleged that the Ombudsman has acted with grave
abuse of discretion amounting to lack or excess of jurisdiction, a special civil action
of certiorari under Rule 65 may be filed with this Court to set aside the
Ombudsman’s order or resolution.—We agree that the alternative remedy avails.
Reiterating Tirol, we held in Mendoza-Arce v. Office of the Ombudsman (Visayas),
that although as a consequence of the decision in Fabian, appeals from the orders,
directives, or decisions of the Ombudsman in administrative cases are now
cognizable by the Court of Appeals, nevertheless in cases in which it is alleged that
the Ombudsman has acted with grave abuse of discretion amounting to lack or
excess of jurisdiction, a special civil action of certiorari under Rule 65 may be filed
with this Court to set aside the Ombudsman’s order or resolution. In Kuizon v.
Desierto, we held that the Court has jurisdiction over such petitions questioning
resolutions or orders of the Office of the Ombudsman in criminal cases. As Nava
himself beseeched the Court to consider his Petition as a petition for certiorari under
Rule 65, we shall treat the same as one.
Remedial Law; Certiorari; In certiorari proceedings under Rule 65 of the
Rules of Court, questions of fact are generally not permitted.—
In certiorari proceedings under Rule 65 of the Rules of Court, questions of fact are
generally not permitted, the inquiry being limited essentially to whether or not the
respondent tribunal had acted without or in excess of its jurisdiction or with grave
abuse of discretion.
_______________
*
 SECOND DIVISION.
378
378  SUPREME COURT REPORTS ANNOTATED 
Nava vs. National Bureau of Investigation, Regional Office No. XI, Davao
City
Same; Same; Ombudsman; The Ombudsman is not duty bound to render anew
a statement of facts or elaborate on the applicable law.—Deliberating upon
the Petition and the arguments in support thereof side by side with the comments of
the respondent thereon, we find that the Petition fails to show a grave abuse of
discretion or any act without or in excess of jurisdiction on the part of the
Ombudsman. Nava’s asseveration that the Ombudsman gravely abused his discretion
when he disapproved the recommendation of the Special Prosecutor urging the
dismissal of the case against the petitioner and without giving any reasons therefor is
specious. The Ombudsman is not duty bound to render anew a statement of facts or
elaborate on the applicable law.
Same; Same; Same; In case of conflict between the conclusion of the
Ombudsman and the Special Prosecutor, the former’s decision shall prevail since
the Office of the Special Prosecutor is under the supervision and control of the
Ombudsman.—It cannot be said that the Ombudsman committed a grave abuse of
discretion because he opined differently from the Special Prosecutor that, under the
facts obtaining in the case, there is probable cause to believe that Nava is guilty of
the offense charged. If the Ombudsman may dismiss a complaint outright for lack of
merit, it necessarily follows that it is also within his discretion to determine whether
the evidence before him is sufficient to establish probable cause. In case of conflict
between the conclusion of the Ombudsman and the Special Prosecutor, the former’s
decision shall prevail since the Office of the Special Prosecutor is under the
supervision and control of the Ombudsman.
Same; Same; Same; Court ordinarily does not interfere with the
Ombudsman’s exercise of discretion in determining whether there exists a
reasonable ground to believe that a crime has been committed and that the accused
49
is probably guilty thereof, and thereafter in filing the corresponding information
with the appropriate courts; Exceptions.—Congruently with the rule that criminal
prosecutions may not be restrained, either through a preliminary or final injunction
or a writ of prohibition, the Court ordinarily does not interfere with the
Ombudsman’s exercise of discretion in determining whether there exists a reasonable
ground to believe that a crime has been committed and that the accused is probably
guilty thereof, and thereafter in filing the corresponding information with the
appropriate courts, save for the following instances: (1) To afford adequate  Office therefore as noted by Superintendent Luceria de Leon.
379
VOL. 455, APRIL 12, 2005  379  In short, absence of any proof to the contrary, the accused enjoys the
Nava vs. National Bureau of Investigation, Regional Office No. XI, Davao
City
protection to the constitutional rights of the accused; (2) When necessary for
the orderly administration of justice or to avoid oppression or multiplicity of actions;
(3) When there is a pre-judicial question which is sub-judice; (4) When the acts of
the officer are without or in excess of authority; (5) Where the prosecution is under
an invalid law, ordinance or regulation; (6) When double jeopardy is clearly
apparent; (7) Where the court has no jurisdiction over the offense; (8) Where it is a
case of persecution rather than prosecution; (9) Where the charges are manifestly
false and motivated by lust for vengeance; (10) When there is clearly no prima
facie case against the accused and a motion to quash on that ground has been denied;
(11) Preliminary injunction has been issued by the Supreme Court to prevent the
threatened unlawful arrest of the petitioners.
PETITION for review on certiorari of a decision of the Ombudsman.
The facts are stated in the opinion of the Court.
     Meliton R. Reyes for petitioner.
     Jose De G. Ferrer co-counsel for petitioner.
TINGA, J.:
In this Petition1 filed pursuant to Section 27,2 Republic Act No. 6770, otherwise
known as "The Ombudsman Act of 1989," in relation to Rule 45 of the Revised
Rules of Court, petitioner Venancio R. Nava (hereinafter, Nava) assails the
disapproval3 by the Ombudsman of the Order4 of the Office of the Special Prosecutor
recommending the dismissal of the case against him and his co-accused Aquilina
Granada (hereinafter, Granada) for alleged Falsification Thru Reckless Imprudence
in OMB Cases No. 3-93-3219 and No. 3-96-0462, in which the public respondent
National Bureau of Investigation (NBI) was the complainant. The Order was issued
to resolve the Motion for Reinvestigation5 filed by Nava. The Order reads in part:
Movant VENANCIO NAVA and AQUILINA GRANADA have to rely in
good faith upon their subordinates. In the absence of any proof that they
have knowledge of the irregularity committed by their subordinates they
cannot be held criminally liable for having acted with reckless imprudence.
In the instant case the accused could not have suspected any irregularity in
the preparation of the PAL based on the ERF's (sic) as the said ERF's (sic)
were certified as true copies by the responsible official in the Division
presumption of regularity in the performance of their official duty.
WHEREFORE, premises considered, it is respectfully recommended that
the Motion For Reinvestigation be GRANTED and that the case as against
VENANCIO NAVA and AQUILINA GRANADA be DISMISSED for
insufficiency of evidence.
Manila, Philippines, May 4, 1998.6 
On 21 May 1998, the Ombudsman disapproved the recommendation of his
subordinates with nary an explanation.
The case subject of this Petition emanated from anonymous letter-complaints7 filed
before the Office of the Ombudsman in Mindanao alleging that fake Equivalent
Record Forms (ERFs) of several teachers of the Davao City National High School
were made the bases for the Plantilla Allocation List (PAL) for calendar year 1988
and for the teachers' corresponding promotion and salary upgrading.8 
The Office of the Ombudsman in Mindanao referred the matter to the NBI in Region
XI (NBI-XI) and directed it to conduct a fact-finding investigation.9 The
investigation by the NBI-XI disclosed, among others, the submission by a certain
Myrna Rosales-Velez of a Service Record (DECS Form No. 93) containing
fabricated facts and the handing in of fake ERFs by other teachers which were the
bases of the PAL approved as correct by Nava who was then the Department of
Education, Culture and Sports (DECS) Regional Director for Region XI.10 The NBI
recommended the filing of appropriate charges against the teachers and officials
concerned.11 
Acting on the findings of the NBI, the Office of the Ombudsman in Mindanao, in
a Joint Resolution12 dated 23 October 1996, recommended the indictment of Nava
before the Sandiganbayan for Falsification of Official Documents thru Reckless
Imprudence.13 The pertinent portions of the Joint Resolution state:
50
 Likewise, this Office finds prima facie evidence to hold respondent DECS
Regional Director Venancio Nava and Administrative Officer Aquilina
Granada liable for Falsification of Official Documents thru Reckless
Imprudence. Evidence on record would show that respondents Nava and
Granada are liable for the charge of falsification for their act of approving
and certifying as correct the Plantilla Allocation List (PAL) based on the
approved Equivalent Record Forms (ERFs) of the subject teachers without
verifying and scrutinizing the ERFs which turned out to be only certified
copies of none-existing documents. Their defense that at their level of
responsibility, it is not fair and right to expect them to be responsible for
such verification as they relied and depended on the processing and
verification of the subject documents to their subordinates, cannot be given
credence. In fact, such admission all the more bolstered the evidence against
the respondents for reckless imprudence in the performance of their official
functions. Indeed respondents Nava and Granada who are holding sensitive
positions, are liable for their failure to detect the falsity of the Equivalent
Record Forms (ERFs) and even approved and certified correct the Plantilla
Allocation List based on the fake or falsified Equivalent Record Forms. In
fact, even their subordinates in the Regional Office have knowledge of the
non-existence of the subject ERFs. On record is the list of DCHS teachers
with approved ERFs as of 1988, submitted by Administrative Officer
Rolando Suase (Records, pp. 47-48 in OMB-3-96-0462). In the said list, not
one of the subject teachers appear. Moreover, a certification dated 15
January 1993, issued by Administrative Officer Edilberto Madria disclosed
that based on the files of subject teachers, same do not have approved ERFs
for the years 1987, 1988 and 1989 (Record, p. 61).14  Sandiganbayan23 to support his stance that the case against him should have been
. . . . 
It is also recommended that respondents Venancio Nava and Aquilina
Granada, be indicted before the Sandiganbayan for Falsification of Official
Documents thru Reckless Imprudence.15  payment. The Court concluded, to wit:
The Joint Resolution was approved by Ombudsman Aniano A. Desierto on 15
November 1996.16  common problemsdishonest or negligent subordinates, overwork,
Thus, the filing of an Information17 against Nava and his co-accused Granada before
the Sandiganbayan on 20 November 1996. The Information was docketed as SB
Criminal Case No. 23519, the accusatory portion of which reads as follows:
That during the Calendar Year 1988 and sometime prior or subsequent
thereto, at Davao City, Philippines and within the jurisdiction of this
Honorable Court, the said accused, both public officers, Venancio R. Nava
being the DECS-XI Regional Director with salary grade 28 and Aquilina B.
Granada, being the Administrative Officer of the same office; while in the
performance of their official duties, thus committing an offense in relation
to their office, did then and there unlawfully and feloniously through gross
inexcusable negligence, certified as correct and approved without verifying
and scrutinizing the Plantilla Allocation List for the Calendar Year 1988
and earlier of the Davao City High School Teachers, based on the approved
Equivalent Record Forms which turned out to be photocopies of none (sic)
existing Equivalent Record Forms, thereby enabling the subject teachers to
be upgraded in their salary grade from Teacher I to Teacher III with
corresponding salary increase as in fact same teachers were able to collect
salary differentials.
CONTRARY TO LAW.18 
Nava filed before the Second Division of the Sandiganbayan a Motion for
Reinvestigation19 which was granted in a Resolution dated 22 September 1997.20   On
4 May 1998, Special Prosecution Officer Manuel A. Corpuz (hereinafter, Special
Prosecutor) recommended the dismissal of the charges against Nava and Granada for
insufficiency of evidence.  This recommendation was, however, disapproved by the
Ombudsman.21 Hence, the instant Petition in which Nava contends that the
Ombudsman gravely erred or was "manifestly mistaken" in disapproving the
recommendation of dismissal of the case against him, which disapproval, he further
avers, is based on an erroneous conclusion drawn from "undisputed" facts which
assumes the nature of a question of law reviewable by this Honorable Court.
Petitioner cites the cases of Arias v. Sandiganbayan22 and Magsuci v.
ordered dismissed.24 
In Arias v. Sandiganbayan,25 the Court absolved the accused therein, who was an
auditor in an engineering district, from the indictment that he conspired in the
overpricing of land purchased by the government by approving the vouchers for its
We would be setting a bad precedent if a head of office plagued by all too
multiple assignments or positions, or plain incompetenceis suddenly
swept into a conspiracy conviction simply because he did not personally
examine every single detail, painstakingly trace every step from inception,
and investigate the motives of every person involved in a transaction before
affixing his signature as the final approving authority.26 
It further held that:
51
 (H)eads of offices have to rely to a reasonable extent on their subordinates
and on the good faith of those who prepare bids, purchase supplies, or enter
into negotiations . . . There has to be some added reason why he should
examine each voucher in detail. Any executive head of
even small government agencies or commissions can attest to the volume of
papers that must be signed. There are hundreds of documents, letters,
memoranda, vouchers, and supporting papers that routinely pass through his
hands. The number in bigger offices or departments is even more
appalling.27  report and recommendation, as he can very well make his own findings of fact.  And
In Magsuci v. Sandiganbayan,28 the Court acquitted the accused therein, a regional
director, of the charges that he approved the payment of a work order based on a
Certificate of Completion and Accomplishment Report which turned out to be
falsities, allegedly in conspiracy with the contractor and the engineer who was tasked
with the duty to accomplish said certificate and report.  The Court ruled in this wise:
In concluding petitioner's involvement in the conspiracy, the Sandiganbayan
could only point to Magsuci's having (1) noted the Accomplishment Report
and Certification submitted by Enriquez, (2) signed the disbursement
voucher with the usual certification on the lawful incurrence of the expenses
to be paid, and (3) co-signed four checks for the payment of P352,217.16 to
Ancla. The Sandiganbayan concluded that the petitioner would not have
thusly acted had he not been a party to the conspiracy.
Fairly evident, however, is the fact that the action taken by Magsuci
involved the very functions he had to discharge in the performance of his
official duties. There has been no intimation at all that he had
foreknowledge of any irregularity committed by either or both Engr.
Enriquez and Ancla. Petitioner might have indeed been lax and
administratively remiss in placing too much reliance on the official reports
submitted by his subordinate (Engineer Enriquez), but for conspiracy to
exist, it is essential that there must be a conscious design to commit an
offense. Conspiracy is not the product of negligence but of intentionality on
the part of the cohorts.29  petition for review under Rule 43 of the Rules of Court.  In any event, as the instant
In the Comment30 filed by the Office of the Ombudsman on behalf of the NBI,
through the Office of the Special Prosecutor,31 it was put forward that as head of
office and the final approving authority of the ERFs, it behooved Nava to see to it
that the supporting documents were attached to the PAL.  Nava should have taken
the necessary measures to verify the contents of the ERFs. Yet he did nothing other
than affix his signature signifying that the ERFs were in order. His contention then
that he had acted in good faith crumbles since he had known that the ERFs of the
teachers did not have the supporting documents to warrant their approval and the
eventual inclusion of the teachers' names in the PAL.32  available as a remedy in non-administrative cases notwithstanding its silence on the
Corollarily, the NBI asserted that the Ombudsman did not err in not applying the
principles laid down by the Court in Arias v. Sandiganbayan33 and Magsuci v.
Sandiganbayan34 as Nava's knowledge of the infirmity of the ERFs cannot controvert
the truth that he had acted in bad faith when he approved the said ERFs and
thereafter the PAL.35 
Moreover, it is discretionary on the Ombudsman whether or not to rely on the
findings of fact of the investigating prosecutor in making a review of the latter's
citing the case of Knecht, et al. v. Desierto et al.,36 the NBI further pleaded that it is
beyond the Court's ambit to review the exercise of the Ombudsman in prosecuting or
dismissing a complaint filed before it.37 
In the Comment38 filed by the Solicitor General also on its behalf, the NBI explained
that for the ERFs to be processed and approved, they must be accompanied by the
teachers' service records, performance ratings, special order of bachelor's degree,
transcripts of records of undergraduate course or masteral units earned, if any, and a
consolidated record of training seminars and workshops attended. Had Nava
exercised ordinary prudence or reasonable care or caution, he would have noticed the
absence of supporting documents accompanying the ERFs. Nava's sole reliance on
the certification and initials of his subordinates is indicative of a wanton attitude and
gross lack of precaution.39 
The NBI also argued that the Ombudsman, in denying the recommendation of the
Special Prosecutor, committed no error in fact and in law. He merely exercised his
prosecuting powers based on the constitutional mandate.40 
Further, the NBI pointed out that the instant Petition is one for review
on certiorari pursuant to Section 27 of R.A. 6770 in relation to Rule 45 of the Rules
of Court, which provision of law had already been declared unconstitutional
in Fabian v. Desierto41 and reiterated in Namuhe v. Ombudsman.42 Pursuant to the
Court's ruling, appeals from orders, directives or decisions of the Ombudsman in
administrative disciplinary cases should be taken to the Court of Appeals by way of a
case is not an administrative disciplinary case, the proper remedy should have been a
petition for certiorari under Rule 65 of the Rules of Court.  However, even assuming
that this remedy was pursued, since there is nothing on record to even suggest that
the Ombudsman committed grave abuse of discretion in refusing to have the case
against Nava dismissed, the NBI insists that the Petition must fail.43 
Nava in his Consolidated Reply44 stressed that the instant Petition was filed on 3
September 1998 before the promulgation of the Fabian case on 16 September 1998;
and maintained that it was then his honest position that Section 27 of R.A. 6770 was
52
matter.  In this instance, however, he posited that the Court of Appeals may likewise
not take cognizance of the Petition in light of the Court's ruling in Tirol, Jr. v.
Justice del Rosario,45 that the right to appeal to the Court of Appeals granted to an
aggrieved party in administrative disciplinary cases as ruled in Fabian is not
available to a party aggrieved by an order and decision of the Ombudsman in
criminal cases, like finding probable cause to indict accused persons. Nava implored
the Court to consider the instant Petition instead as a petition for certiorari under
Rule 65 of the Rules of Court as the actuations of the Ombudsman amount to a grave
abuse of discretion amounting to lack or excess of its jurisdiction.46 
We first dispose of the remedy issue raised by respondent NBI in its Comment47 filed
on its behalf by the Solicitor General. It asserted that since the instant Petition was
filed pursuant to Section 27 of R.A. 6770, Nava's appeal should be taken to the Court
of Appeals by way of a petition for review under Rule 43 of the Rules of Court
according to Fabian. An alternative would be to file a petition for certiorari under
Rule 65 of the Rules of Court to the Court as the instant case is not an administrative
disciplinary case.48  conducting anew another investigation but is merely determining the
We agree that the alternative remedy avails. Reiterating Tirol,49 we held in Mendoza-
Arce v. Office of the Ombudsman (Visayas),50 that although as a consequence of the
decision in Fabian,51 appeals from the orders, directives, or decisions of the
Ombudsman in administrative cases are now cognizable by the Court of Appeals,
nevertheless in cases in which it is alleged that the Ombudsman has acted with grave
abuse of discretion amounting to lack or excess of jurisdiction, a special civil action
of certiorari under Rule 65 may be filed with this Court to set aside the
Ombudsman's order or resolution. In Kuizon v. Desierto,52 we held that the Court has
jurisdiction over such petitions questioning resolutions or orders of the Office of the
Ombudsman in criminal cases. As Nava himself beseeched the Court to consider his
Petition as a petition for certiorari under Rule 65, we shall treat the same as one.
Coming now to the merits, the Petition cannot succeed.
In certiorari proceedings under Rule 65 of the Rules of Court, questions of fact are
generally not permitted, the inquiry being limited essentially to whether or not the
respondent tribunal had acted without or in excess of its jurisdiction or with grave
abuse of discretion.53  the offense charged.  If the Ombudsman may dismiss a complaint outright for lack of
Grave abuse of discretion implies a capricious and whimsical exercise of judgment
tantamount to lack of jurisdiction. In other words, the exercise of power is in an
arbitrary or despotic manner by reason of passion or personal hostility. It must be so
patent and gross as to amount to an evasion of positive duty or a virtual refusal to
perform the duty enjoined or to act at all in contemplation of law.54 
Deliberating upon the Petition and the arguments in support thereof side by side with
the comments of the respondent thereon, we find that the Petition fails to show a
grave abuse of discretion or any act without or in excess of jurisdiction on the part of
the Ombudsman. Nava's asseveration that the Ombudsman gravely abused his
discretion when he disapproved the recommendation of the Special Prosecutor
urging the dismissal of the case against the petitioner and without giving any reasons
therefor is specious.  The Ombudsman is not duty bound to render anew a statement
of facts or elaborate on the applicable law.55   As we held in Cruz, Jr. v. People:56 
It may seem that that the ratio decidendi of the Ombudsman's disapproval
may be wanting but this is not a case of total absence of factual and legal
bases nor a failure to appreciate the evidence presented. What is actually
involved here is merely a review of the conclusion arrived at by the
investigating prosecutor as a result of his study and analysis of the
complaint, counter-affidavits, and the evidence submitted by the parties
during the preliminary investigation.  The Ombudsman here is not
propriety and correctness of the recommendation given by the investigating
prosecutor, that is, whether probable cause actually exists or not, on the
basis of the findings of the latter. Verily, it is discretionary upon the
Ombudsman if he will rely mainly on the findings of fact of the
investigating prosecutor in making a review of the latter's report and
recommendation, as the Ombudsman can very well make his own findings
of fact. There is nothing to prevent him from acting one way or the other.
As a matter of fact, Section 4, Rule 112 of the Rules of Court provides that
"where the investigating assistant fiscal recommends the dismissal of the
case but his findings are reversed by the provincial or city fiscal or the chief
state prosecutor on the ground that a probable cause exists, the latter may,
by himself, file the corresponding information against the respondent or
direct any other assistant fiscal or state prosecutor to do so, without
conducting another preliminary investigation.57 
Likewise, it cannot be said that the Ombudsman committed a grave abuse of
discretion because he opined differently from the Special Prosecutor that, under the
facts obtaining in the case, there is probable cause to believe that Nava is guilty of
merit, it necessarily follows that it is also within his discretion to determine whether
the evidence before him is sufficient to establish probable cause. 58 In case of conflict
between the conclusion of the Ombudsman and the Special Prosecutor, the former's
decision shall prevail since the Office of the Special Prosecutor is under the
supervision and control of the Ombudsman.59 
The Ombudsman's act of disapproving the recommendation of the Special Prosecutor
to dismiss the case against Nava was not whimsical or capricious. He disapproved
53
the recommendation of the Special Prosecutor because in his estimation, there was
sufficient evidence to indict the accused. This was an exercise of the powers of the
Ombudsman based on constitutional mandate and the courts should not interfere in
such exercise.
Congruently with the rule that criminal prosecutions may not be restrained, either
through a preliminary or final injunction or a writ of prohibition, the Court ordinarily
does not interfere with the Ombudsman's exercise of discretion in determining
whether there exists a reasonable ground to believe that a crime has been committed
and that the accused is probably guilty thereof, and thereafter in filing the
corresponding information with the appropriate courts,60 save for the following
instances:
(1) To afford adequate protection to the constitutional rights of the accused;
(2) When necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions;
(3) When there is a pre-judicial question which is sub-judice;
(4) When the acts of the officer are without or in excess of authority;
(5) Where the prosecution is under an invalid law, ordinance or regulation;
(6) When double jeopardy is clearly apparent;
(7) Where the court has no jurisdiction over the offense;
(8) Where it is a case of persecution rather than prosecution;
(9) Where the charges are manifestly false and motivated by lust for
vengeance;
(10) When there is clearly no prima facie case against the accused and a
motion to quash on that ground has been denied;
(11) Preliminary injunction has been issued by the Supreme Court to
prevent the threatened unlawful arrest of the petitioners.61
The Court has consistently refrained from interfering with the constitutionally
mandated investigatory and prosecutorial powers of the Ombudsman absent any
compelling reason.62 In Alba v. Nitorreda,63 we have held that:
It is beyond the ambit of this Court to review the exercise of discretion of
the Ombudsman in prosecuting or dismissing a complaint filed before it.
Such initiative and independence are inherent in the Ombudsman, who
beholden to no one, acts as the champion of the people and preserver of the
integrity of the public service. 64 
While in the case of Presidential Commission on Good Government v. Desierto,65 we
reiterated:
The prosecution of offenses committed by public officers is vested in the
Office of the Ombudsman. To insulate the Office from outside pressure and
improper influence, the Constitution as well as R.A. 6770 has endowed it
with a wide latitude of investigatory and prosecutory powers virtually free
from legislative, executive or judicial intervention. This Court consistently
refrains from interfering with the exercise of its powers, and respects the
initiative and independence inherent in the Ombudsman who, 'beholden to
no one, acts as the champion of the people and the preserver of the integrity
of public service.'66 
This policy of non-interference is not only based on constitutional and statutory
considerations but upon practicality as well.  Otherwise, the functions of the courts
would be grievously hampered by innumerable petitions assailing the dismissal of
investigatory proceedings conducted by the Office of the Ombudsman with regard to
complaints filed before it, in much the same way that the courts would be extremely
swamped if they could be compelled to review the exercise of discretion on the part
of the fiscals or prosecuting attorneys each time they decide to file an information in
court or dismiss a complaint by a private complainant.67 
Further, it needs repeating that while it is the Ombudsman who has the full discretion
to determine whether or not a criminal case should be filed in the Sandiganbayan,
once the case has been filed with said court, it is the Sandiganbayan, and no longer
the Ombudsman, which has full control of the case so much so that
the Informationmay not be dismissed without the approval of said court.68 
Next, Nava contends that he was not accorded the opportunity to file a motion for
reconsideration within five (5) days from receipt thereof and before the filing of
the Information69 in violation of Section 7 of Administrative Order No. 7, as amended
by Administrative Order No. 9, which provides that:
Sec. 7. Motion for Reconsideration.
a) Only one motion for reconsideration or reinvestigation of an approved
order or resolution shall be allowed; the same to be filed with the Office of
54
 the Ombudsman, or of the Deputy Ombudsman as the case may be, within
an inextendible period of five (5) days from notice thereof.
b) No motion for reconsideration or reinvestigation shall be entertained after
the information shall have been filed in court, except upon order of the court
wherein the case was filed.70  party, when he is represented by a counsel of record, is not valid is applicable here in
We find that the issue not of momentous legal significance for non-compliance with
Section 7 of Administrative Order No. 7 does not affect the validity of
the Information filed with the Sandiganbayan. An aggrieved party's motion for
reconsideration or reinvestigation may nevertheless be filed and acted upon by the
Ombudsman if so directed by the court where the information was filed such as what
had taken place in this case.71 
Finally, reliance on the cases of Arias and Magsuci cannot be countenanced as they
are not on all fours with the present Petition. In both cases, trial on the merits had
already been held, as in fact the judgment of conviction was challenged in the
petition, and therefore the Court had the opportunity to appreciate the evidentiary
matters which came out of the trial.  On the other hand, Nava's allegations in the case
involve evidentiary issues which could be resolved only in a full-blown trial and not
presently in this Petition.
ACCORDINGLY, the instant Petition is DISMISSED.  Costs against petitioner.
SO ORDERED.
No. L-55694. October 23, 1981.*
ADALIA B. FRANCISCO, ZENAIDA FRANCISCO, ESTER FRANCISCO,
ADELUISA FRANCISCO and ELIZABETH FRANCISCO,
petitioners, vs. HON. BENIGNO M. PUNO, as Presiding Judge, Court of First
Instance of Quezon, Branch II, Lucena City and JOSEFINA D. LAGAR,
respondents.
Remedial Law; Civil Procedure; Remedies of petition for relief from judgment
and motion for new trial and/or reconsideration are exclusive of each other; Filing
of a timely motion for new trial precludes filing of a petition for relief after denial of
motion.—In other words, where, as in this case, another remedy is available, as, in
fact, private respondent had filed a motion for new trial and/or reconsideration
alleging practically the same main ground of the petition for relief under discussion,
which was denied, what respondent should have done was to take to a higher court
such denial. A party who has filed a timely motion for new trial cannot file a petition
for relief after his motion has been denied. These two remedies are exclusive of each
other. It is only in appropriate cases where a party aggrieved by a judgment has not
been able to file a motion for new trial that a petition for relief can be filed.
Same; Same; Notices; Notice to counsel of a decision is notice to the party
represented.—In any event, We hold that notice to counsel of the decision is notice
to the party for purposes of Section 3 of Rule 38. The principle that notice to the
the reverse for the very same reason that it is the lawyer who is supposed to know the
next procedural steps or what ought to be done in law henceforth for the protection
of the rights of the client, and not the latter.
PETITION for certiorari to review the judgment of the Court of First Instance of
Quezon, Branch II.
The facts are stated in the opinion of the Court.
BARREDO, J.:
Petition for certiorari impugning the resolution of respondent judge of October 8,
1980 granting private respondent's petition for relief from the judgment rendered by
the same respondent judge on January 8, 1980 in Civil Case No. 8480 of the Court of
First Instance of Quezon which dismissed private respondent's complaint for
reconveyance of a parcel of land and damages. That decision was rendered
notwithstanding the absence of petitioners at the pre-trial by reason of which they
were declared in default. It was based alone on the testimony of private respondent
Josefina D. Lagar and the documents she presented. 
On August 29, 1979, private respondent filed with respondent judge a complaint for
reconveyance of a parcel of land and damages alleging inter alia that respondent's
father caused the land in question titled in his name alone as "widower", after her
mother's death, in spite of the property being conjugal, and then sold it to the
predecessor in interest of petitioners from whom they bought the same. 
After the defendants, herein petitioners had filed their answer, wherein they alleged
lack of personality of plaintiff to sue, prescription and that they are buyers in good
faith, the case was set for pre-trial, but petitioners failed to appear thereat. Taking
advantage of such absence, private respondent's counsel move that they be declared
in default and that private respondent, with the assistance of her counsel, Atty.
Pacifico M. Monje, be allowed to present their evidence. The motion was granted
and after presenting her evidence, counsel rested her case. On the same date,
respondent judge rendered judgment finding the evidence insufficient to sustain the
cause of action alleged and therefore dismissing the complaint. That was on January
8, 1980. On February 15, 1980, respondent's counsel was served with copy of the
decision. (See Annex G of the petition.) 
55
On February 16, 1980, private respondent filed, thru a new counsel, Atty. 6. Because plaintiff-petitioner was under the belief that the
Bienvenido A. Mapaye, a motion for new trial and/or reconsideration alleging that scheduled hearing was one where no testimony is yet to be taken,
the insufficiency of her evidence was due to the fault of her counsel who presented coupled by the fact that she was not prepared to testify, and that it
the same without her being fully prepared. In other words, she claimed, she had was her first time to take the witness stand, she did not fully
newly discovered evidence that could prove her cause of action. It is relevant to note comprehend the questions propounded to her. 
that said motion was signed and sworn to by private respondent herself together with
her counsel.  7. Plaintiff-petitioner filed a Motion for Reconsideration and/or
new trial but was denied in its order dated April 28, 1980, which
Acting on the said motion for new trial and/or reconsideration, on April 28, 1980, petitioner received on May 5,1980. 
respondent judge denied the same for having been filed out of time. Indeed, from
January 15, 1980, when respondent's counsel was served with the decision, to 8. If plaintiff-petitioner will be allowed to introduce evidence in
February 16, 1980, when the motion was filed, more than 30 days had already her possession, which by excusable neglect and/or mistake were
elapsed (32 days to be exact).  not introduced, the same will necessarily alter and, or change the
decision in her favor, attached is her affidavit of merits. 
Persisting in her effort to pursue her claim, under date of May 7, 1980, private
respondent filed, thru another new counsel, Atty. Ricardo Rosales, Jr., a petition for 9. Evidence in support of her claim that it is a conjugal property
relief, purportedly under Rule 38, claiming:  consist of a deed of sale executed by Manual Zaballero and
Germana Ona in favor of the conjugal partnership of Dionisio
1. She filed civil case 8480 for Reconveyance and Damages Lagar and Gaudencia Daello (Doc. No. 412; Page No. 55; Book
against defendants Luis Francisco, et al., on August 29, 1979.  No. 11; Series of 1948 of Notary Public Francisco Mendioro xerox
copy thereof is attached herewith as Annex "A".
2. The main trust in petitioner's action against defendant was her
unlawful deprivation of one-half of the property covered by TCT 10. The deed of sale ratified by Notary Public Ramon Ingente
No. 2720 and denominated as Lot 4864 of the cadastral survey of (Doc. No. 68; Page No. 7; Book No. VI; Series of 1955 executed
Lucena, as said parcel belongs to the conjugal partnership of by Dionisio Lagar should refer only to one-half (1/2) and therefore
Dionisio Lagar and Gaudencia Daelo, plaintiff-petitioner's is annulable in so far as the other half of the property is
immediate predecessor-in-interest.  Concerned. 

3. Gaudencia Daelo having predeceased her husband, petitioner 11. That the petition wherein Dionisio Lagar sought [4) change his
contends that one-half of the property belongs to her mother and civil status was not known personally to the plaintiff-petitioner
therefore should rightfully by inherited by her after her mother's and/or not understood by her, otherwise she could have made
death, but failed however, to inherit any part thereof, because her reservations in that petition eventually protecting her right insofar
father sold the entire parcel to the defendant Luis Francisco.  as one-half (1/2) of the property is concerned. 

4. On January 8, 1980, a pre-trial hearing was scheduled, where 12. Plaintiff-petitioner has a valid substantial cause of action
defendants were declared as if in default thereafter an order of consisting of evidence enumerated above, which by excusable
default was issued and plaintiff adduced evidence ex-parte.  negligence or error was not presented otherwise, the decision will
be in favor of the plaintiff herein petitioner. (Petition for Relief of
5. On the same date, January 8, 1980, a decision was rendered Judgment, pp. 50-52, Record 
dismissing the case after plaintiff took the witness stand, who
through excusable neglect was not able to expound on very vital Answering the petition for relief, petitioners maintained that aside from the fact that
points and inadvertently failed to introduce in support of her no excusable negligence has been alleged, for, on the contrary, there was an evident
theory.  effort oil respondent's part to take advantage of the absence and default of petitioners
when respondent presented her evidence, the petition for relief was filed out of time
56
in the light of Section 3 of Rule 38, which provides that such a petition should be " In the light of the circumstances obtaining in this case, it is the
filed within sixty (60) days after the petitioner learns of the judgment, order or opinion of the Court that it is the date when plaintiff actually
proceeding to be set aside, and not more than six (6) months after such judgment or learned of the decision from which she seeks relief that should be
order was entered or such proceeding was taken."  considered in computing the period of 60 days prescribed under
Sec. 3, Rule 38 of the Rules of Court for purposes of determining
In his resolution of October 8, 1980 now under question, respondent judge ruled the timeliness of the said petition for relief; this opinion finds
that:  support in Cayetano vs. Ceguerra et al., No. L-18831, 13 SCRA,
where the Supreme Court, in effect, held that the date of 'actual
Defendants' claim that plaintiff is presumed to have learned of the knowledge' (and not the presumed date of receipt or knowledge) of
judgment of January 8, 1980, either on January 15, 1980 when the decision, order or judgment from which relief is sought shall be
Atty. Monje received a copy thereof or on February 15, 1980, the date which should be considered in determining the timeliness
when plaintiff signed the Motion for Reconsideration and/or New of the filing of a petition for relief; in that case, the Supreme Court
Trial prepared by Atty. Mapaye, in either case, the petition for said: 
relief of May 8, 1980 by Atty. Rosales was resorted to beyond the
60-day period prescribed under Section 3, Rule 38 of the Rules of It is conceded that defendants received a first
Court; from January 15 to May 8 is a period of 114 days and from registry notice on January 13, 1961, but they did
February 15 to May 8 is a period of 84 days; in either case, the not claim the letter, thereby giving rise to the
filing of the petition for relief is beyond 60 days from the time presumption that five (5) days after receipt of the
plaintiff is presumed to have learned of said decision of January 8, first notice, the defendants were deemed to have
although, in either or both events, the filing thereof is admittedly received the letter. This Court, however, cannot
within 6 months from the issuance of said decision; on the other justly attribute upon defendants actual
hand, the plaintiff stated that she did not actually learn of the knowledge of the decision, because there is no
decision of January 8, until she received a copy thereof on March showing that the registry notice itself contained
17, 1980 (p. 67 of Record or Exh. "G") and that she was not any indication that the registered letter was a
informed of the contents of the motion for new trial and/or copy of the decision, or that the registry notice
reconsideration on February 15, 1980 when she was made to sign it referred to the case being ventilated. We cannot
(TSN, pp. 20-21, July 28, 1980).  exact a strict accounting of the rules from
ordinary mortals, like the defendants.
Q From where did you secure that copy of the (Resolution, pp. 67-68, Record.) 
decision? 
We cannot agree, for two reasons. First, according to Chief Justice Moran: 
A I went to the court myself and secured a copy
of the decision. (TSN, p. 16-id). The relief provided for by this rule is not regarded with favor and
the judgment would not be avoided where the party complaining
xxx xxx xxx "has, or by exercising proper diligence would have had, an
adequate remedy at law, or by proceedings in the original action,
by motion, petition, or the like to open, vacate, modify or
Q And you are sure of the fact that you only otherwise obtain relief against, the judgment." (Fajardo v. Judge
became aware of the decision in the month of Bayona, etc., et al., 52 O.G. 1937; See Alquesa v. Cavoda L-
March, 1980? 16735, Oct. 31, 1961, citing 49 C.J.S. 695.) The remedy allowed
by this rule is an act of grace, as it were, designed to give the
A Yes. sir, (TSN, p. 20, Id).  aggrieved party another and last chance. Being in the position of
one who begs, such party's privilege is not to impose conditions,
haggle or dilly-dally, but to grab what is offered him. (Palomares,

57
 et al. v. Jimenez, et al., L-4513, Jan. 31, 1952.) (Page 226, Moran, in Civil Case No. 8480 of his court, which latter decision may now be executed, the
Comments on the Rules of Court, Vol. 2, 1979 Edition.)  same being already final and executory. No costs.

In other words, where, as in this case, another remedy is available, as, in fact, private
respondent had filed a motion for new trial and/or reconsideration alleging
practically the same main ground of the petition for relief under discussion, which
was denied, what respondent should have done was to take to a higher court such
denial. A party who has filed a timely motion for new trial cannot file a petition for
relief after his motion has been denied. These two remedies are exclusive of each
other. It is only in appropriate cases where a party aggrieved by a judgment has not
been able to file a motion for new trial that a petition for relief can be filed. 

Second, it is beyond doubt that the petition for relief of private respondent was filed
out of time. We cannot sanction respondent court's view that the period should be
computed only from March 17, 1980 when she claims self-servingly that she first
knew of the judgment because, as stated above, she signed and even swore to the
truth of the allegations in her motion for new trial filed by Atty. Mapaye on February
16, 1980 or a month earlier. To give way to her accusations of incompetence against
the lawyer who handled her case at the pre-trial, which resulted in a decision adverse
to her despite the absence of petitioners, and charge again later that her new counsel
did not inform her properly of the import of her motion for new trial and/or
reconsideration is to strain the quality of mercy beyond the breaking point and could
be an unwarranted slur on the members of the bar. That, however, Atty. Mapaye cud
not pursue the proper course after his motion for new trial was denied is, of course,
unfortunate, but We are unaware of the circumstances of such failure and how much
of it could be attributed to respondent herself, hence We cannot say definitely Chat it
was counsel's fault, 

In any event, We hold that notice to counsel of the decision is notice to the party for
purposes of Section 3 of Rule 38. The principle that notice to the party, when he is No. L-17722. October 9, 1961.
represented by a counsel of record, is not valid is applicable here in the reverse for MAURICIO GORDULAN, plaintiff-appellee, vs. CESAREO GORDULAN,
the very same reason that it is the lawyer who is supposed Lo know the next defendant-appellant.
procedural steps or what ought to be done in law henceforth for the protection of the Petition for relief; Requirements in Rule 38, Rules of Court, considered sine
rights of the client, and not the latter.  qua non; Case at bar.—Rule 38 of the Rules of Court is a special remedy and the
requirements therein set forth are considered sine qua non to the proper allowance of
relief Sections 2 and 3 thereof are explicit, and require not only a. sworn statement of
Under the circumstances, We hold that respondent judge acted beyond his the facts constituting petitioner’s good and substantial defense, but likewise a
jurisdiction in taking cognizance of private respondent's petition for relief and, showing that the failure to file an answer was by reason of fraud, accident, mistake
therefore, all his actuations in connection therewith are null and void, with the result or excusable negligence. While in the case at bar, appellant’s petition for relief
that his decision of January 8, 1980 should be allowed to stand, the same having contains a recital of facts, duly sworn to by him, that the lot in dispute is owned in
become final and executory.  common by the plaintiff and the defendant in equal shares, nothing is offered to
show that there was fraud, mistake, accident or excusable negligence in the failure of
ACCORDINGLY, judgment is hereby rendered setting aside the resolution of the lawyer to timely join issues with the plaintiff. Hence, the petition was correctly
respondent judge of October 8, 1980 and reinstating his decision of January 8, 1980 denied.

58
 Attorney and client; Client bound by acts and mistakes of his counsel.—A
client is bound by the acts, even by the mistakes and negligence, of his counsel in the
realm of procedural technique. Of course, the door is open for him to seek redress 
206
206  SUPREME COURT REPORTS ANNOTATED  defendant, in failing to file his answer to the complaint within the
Gordulan vs. Gordulan
against the erring lawyer for the wrong suffered (Isaac vs. Mendoza, L-2820,
June 21, 1951).
APPEAL from an order of the Court of First Instance of Nueva Ecija.
The facts are stated in the opinion of the Court.
     Agustin Bagasao for plaintiff-appellee.
     Pedro D. Maldia for defendant-appellant.
REYES, J.B.L., J.:
This appeal, which was certified to this Court by the Court of Appeals because only
issues of law are raised, questions an order of the Court of First Instance of Nueva
Ecija denying defendant's petition for relief from a final judgment by default.
It is uncontested that in Civil Case No. 2488 of the court below, a suit for the
recovery of land, the defendant therein, Cesareo Gordulan, although duly summoned,
failed to file his answer in due time. Upon motion of the plaintiff, the defendant was
declared in default. After reception of evidence for the plaintiff, the lower court
rendered judgment against defendant (now appellant). Availing himself of the
provisions of Rule 38 of the Rules of Court, the defendant Cesareo Gordulan sought
to set the judgment aside, claiming that he had good and valid defenses against
plaintiff's complaint and that it was excusable negligence on his part that his counsel
failed to file an answer.
His petition having been denied, the defendant interposed this appeal.
The questioned order should not be disturbed. Section 2 and 3 of Rule 38 of the
Rules of Court are explicit, and require not only a sworn statement of the facts
constituting petitioner's good and substantial defense, but likewise a showing that the
failure to file an answer was by reason of fraud, accident, mistake or excusable
negligence. While appellant's petition for relief contains a recital of facts, duly sworn
to by him, that the lot in dispute is owned in common by the plaintiff and the
defendant in equal shares, nothing is, however, offered to show that there was fraud,
mistake, accident or excusable negligence in the failure of the lawyer to timely join
issues with the plaintiff.
The trial judge, Honorable Felix V. Makasiar, has correctly pointed out in the
appealed order:
considering that the negligence of Atty. Antero Tomas, as counsel for the
reglementary period is not excusable and, therefore, not a ground for relief;
that Atty. Antero Tomas has not even submitted any affidavit with respect
to his alleged negligence; that the defendant had the duty to inquire from
Atty. Tomas as to what he did with the complaint or whether he filed his
answer thereto or the status of the case before the order of default on May
27, 1957, or before the plaintiff presented his evidence on July 18, 1957 and
could have presented a motion to set aside the order of default prior to July
18, 1957 (See Taguinod, et al. vs. Mangantilao, L-7970, February 28, 1956;
Robles, et al. v. San Jose, et al., L-8627, July 31, 1956; 52 Off. Gaz. 6183;
Vivero v. Belo, No. L-8105, February 28, 1956; 52 Off. Gaz, 1924); that the
defendant could have easily inquired from the records as to the status of the
case inasmuch as his residence in Muñoz is only less than one hour by bus
from Cabanatuan City; and that his duty to make such an inquiry is
underscored by his claim that his harvest of palay of 16 cavans from the
land for the agricultural year 1956-57 was attached by the plaintiff's
mortgagee, the petition for relief is hereby denied.
Rule 38 is a special remedy and the requirements therein set forth are considered as
conditions sine qua non to the proper allowance of relief.
Neither is it arguable that defendant should not be held to suffer for his counsel's
shortcomings, for a client is bound by the acts, even by the mistakes and negligence,
of his counsel in the realm of procedural technique. Of course, the door is open for
him to seek redress against the erring lawyer for the wrong suffered (Isaac vs.
Mendoza, L-2820, June 21, 1951).
WHEREFORE, the order appealed from is affirmed, with costs against appellant.
No. L-46674. September 16, 1985.*
LAUREANO ARCILLA, petitioner, vs. BASILISA ARCILLA, SERAPIA
ARCILLA, MARCELA ARCILLA, DIONISIA ARCILLA, ZACARIAS
ARCILLA, GAVINA MOLO VDA. DE ARCILLA, CESAR M. ARCILLA,
GLORIA M. ARCILLA, ANTONIO M. ARCILLA, POMPEY M. ARCILLA,
ERNESTO M. ARCILLA, ELENA M. ARCILLA, ASUNCION M. ARCILLA,
RANULFO M. ARCILLA, IGLESERIA A. CAÑETE, ROSABELLA A.
CAÑETE, and HONORABLE FRANCIS J. MILITANTE, Presiding Judge of
Branch IX of the Court of First Instance of Cebu, respondents.
Judgments; Motions; The party filing a petition for relief must show
compliance with the provisions of Rule 38, especially on timely filing of said petition.
59
—The rule, therefore, is that in order for a petition for relief filed under Rule 38 to be
entertained by the court, the petitioner must satisfactorily show that he has faithfully
and strictly complied with the provisions of said Rule 38. Consequently, in assailing
the lower court’s dismissal of his petition for relief for having been filed out of time,
it is incumbent upon herein petitioner to show that the said petition was filed within
the reglementary period specified in Section 3, Rule 38. He has failed to do so,
instead he argues on the merits of his petition for relief, without first showing that the
same was filed on time in the court below. On this ground alone, the instant case
should be dismissed.
Same; Same; Same.—Moreover, We agree with the respondent Judge that the
petition for relief was filed late. We note that the decision sought to be set aside was
rendered on October 27, 1976. Petitioner, through counsel, received a copy of the
said decision on 
__________________
* SECOND DIVISION.
561
VOL. 138, SEPTEMBER 16, 1985  561  Court of First Instance of Cebu, Br. IX. Militante, J.
Arcilla vs. Arcilla
November 8, 1976, and he filed his petition for relief from judgment only on
April 18, 1977. Clearly, the same was filed beyond the period allowed by Section 3
of Rule 38. As in previous cases, this Court holds and so rules that the instant
petition filed after the lapse of the reglementary period cannot be entertained.
Pre-trial; Actions; Default; Where defendant was actually present at the pre-
trial, the fact that only his counsel was notified in writing of the next-pre-trial is no
excuse for setting aside the order of default.—At first blush, petitioner’s aforesaid
contention appears very tenable, for indeed it is settled that a declaration of default,
in the absence of a notice of pre-trial constitutes denial of due process. But a deeper
examination of the pleadings and the record of the case would show that petitioner
was present during the pre-trial conference on July 29, 1975 when the lower court re-
set the pre-trial to October 2, 1975. On the said date, however, although notified,
both petitioner and his counsel did not appear, hence, the declaration of default
pursuant to Sec. 2, of Rule 20 of the Rules of Court.
Judgments; Motions; General allegation “that defendant has a good and valid
defense” is not sufficient compliance for relief from judgment to be granted under
Rule 38.—Examining the petition for relief filed by petitioner, while the same
appears verified and accompanied by an affidavit of merit, the allegations of fact
made therein do not prove either fraud, accident, mistake, or excusable negligence,
nor show a valid defense in favor of the party seeking relief. The general allegation
made therein to the effect that “petitioner has a good and valid defense considering
that the late Segunda O. Vda. de Arcilla voluntarily and willingly executed the
document of Sale”, is not sufficient compliance with the rules. Since the Deed of
Sale sought to be annulled was written in English and it is admitted that Segunda O.
Vda. de Arcilla is an illiterate and do not know how to read and write, it would have
been an easy matter for petitioner to have secured the affidavit of Nemesio Jubay, the
Notary Public who allegedly notarized the document as well as the witnesses to the
execution and signing thereof to show that the contents of the document was fully
explained to said Segunda O. Vda. de Arcilla and that she voluntarily signed the
same. This way, petitioner could convince the Court that in his legal fight, he had a
leg on which to stand. It thus results that reversal of the order complained of, as well
as the judgment rendered thereon would be an idle ceremony. It would not advance
or for that matter serve the ends of justice. It would only result in another waste of
time, effort and expense Paraphrasing what this Court has stated in Paner vs. Yatco it
would be pointless to 
562
562  SUPREME COURT REPORTS ANNOTATED 
Arcilla vs. Arcilla
re-open this case, “for like a mirage it would merely raise false hopes and in
the end avail her (him) nothing.”
SPECIAL CIVIL ACTION for certiorari and prohibition to review the Order of the
The facts are stated in the opinion of the Court.
     Vicente Varela, Jr. for petitioner.
     Basilio E. Duaban for respondents.
CUEVAS, J.:
The instant special civil action for certiorari and PROHIBITION assails the
Order1 dated May 18, 1977 issued by respondent Judge Francis J. Militante,
presiding Judge of the then Court of First Instance of Cebu, Branch IX in Civil Case
No. 395-T, denying Laureano Arcilla's Petition for Relief from Judgment, for having
been filed beyond the period prescribed by Section 3, Rule 38 of the Rules of Court. 
Petitioner was among the several defendants in Civil Case No. 395-T, an action for
Annulment of Sale with Damages, filed by the herein private respondents before the
then Court of First Instance of Cebu on May 28, 1973. 
After the issues were joined by the filing of defendants' Answer, the case was set for
pre-trial conferences. At the scheduled pre-trial on July 29, 1975, the lower court
issued the following Order. 2
Let the continuation of the pre-trial of this case be set to October 2,
1975 at 8:30 a.m. in Cebu City. 
Attys. Duaban and Monteclaros are notified in open court. 
60
On October 2, 1975, defendants (among whom is the petitioner herein) and their said defendants were duly notified of the setting for pre-trial on
counsel did not appear. Whereupon, on motion of plaintiffs' (now private that same date (October 2nd) and upon oral motion by counsel for
respondents) counsel, defendants were declared in default 3pursuant to Section 2, the plaintiffs, declared defendants in default based and in
Rule 20 of the Rules of Court and the plaintiffs were allowed to present their accordance with the supposed provisions of Sec. 2 of Rule 20 of
evidence ex-parte.  the Revised Rules of Court . . . the declaration of default under said
Sec. 2 of Rule 20 is within supposition that the defendants sought
On October 27, 1976, judgment4 was rendered in favor of the plaintiffs, the to be declared as such should be shown that they actually know of
dispositive portion of which reading as follows—  such setting, but the records of the case disclose that no notice was
ever served upon said defendants; 
(1) Declaring the Deed of Sale (Exh. 'E') allegedly executed by
Segunda Vda. de Arcilla in favor of defendant Laureano Arcilla as That, defendants, particularly the principal defendant Laureano
null and void;  Arcilla, learned of the decision of October 27, 1976 only on March
24, 1977 when the herein undersigned counsel showed him a xerox
(2) Declaring the eight (8) children of Segunda O. Vda. de Arcilla copy of the same which the undersigned counsel procured a day
(including defendant Laureano) as co-owners on equal shares of earlier. (Mar. 23) 
the one-half (1/2) portion of that parcel of land covered by Tax
Declaration No. 00347 which was adjudicated to her in the That the defendants therefore seek the setting aside and lifting the
Extrajudicial Partition Settlement and as co- owner in eight (8) effects of the decision aforementioned based on mistake and/or
equal shares of the parcel of land covered by Tax Declaration No. excusable neglect for their failure to inquire from their lawyer
00349 which was intended for her full usufruct  Atty. Monteclaros or with this Court believing that they will be
duly notified of any proceeding in connection with the above-
(3) Dismissing the complaint as against defendant Nemesio Jubay.  entitled case either by their lawyer Atty. Monteclaros or by the
Office of the Clerk of Court of this Court inasmuch as they are not
the plaintiffs and are therefore in the defensive side of the case. 
Although the defendants had been declared in default, let a copy of this decision be
furnished them through their counsel. 
That an Affidavit of Merit is attached to the present petition for
Relief of Judgment based on Rule 38 of the Revised Rules of Court
SO ORDERED.  and herein marked as Annex '1' to form an integral part hereof
executed by principal defendant Laureano Arcilla and said
A copy of the aforesaid decision was sent to and received by defendants' counsel of defendants, in accordance with the obligations contained in said
record, Atty. Cosme D. Monteclaros, on November 8,1976.  affidavit of merits, has a good and valid defense against the claim
of plaintiffs, considering that the late Segunda O. Vda. de Arcilla
On March 25, 1977, herein petitioner, as one of the defendants in said Civil Case No. voluntarily and willingly executed the document of sale sought to
395-T, through his new counsel, filed a Motion to Lift Order of Default and to Set be annulled, the contents thereof having been fully explained to her
Aside the Decision dated October 27, 1976, 5 which was denied by respondent Judge by the notary public and it was for a valuable consideration. 
in his Order dated April 12, 1977. 
On May 18, 197 7, respondent Judge issued his now assailed Order denying
On April 16, 1977, petitioner filed a Petition for Relief from Judgment, 6 alleging petitioner's Petition for Relief, the pertinent portion reading as follows— 
mainly—
The plaintiff in her opposition, contends that the petition for relief
That on July 29, 1975, a Court Order was issued setting the pre- from judgment is already filed out of time because the judgment of
trial of the above-entitled case to October 2, 1975; however, on this Court was received by counsel for the defendants on
October 2, 1975, the then Hon. Presiding Judge of this Court, November 8, 1976, hence, the defendants had only up to January 8,
without previous examination of the records as to whether or not 1977 to file a petition for relief from judgment. Sec. 3 of Rule 38
61
 of the Rules of Court clearly states that "A petition provided for in
either of the preceeding section of this rule must be verified, filed
within sixty (60) days after the petitioner learns of the judgment,
order, or other proceeding to be set aside, and not more than six (6)
months after such judgment or order was entered or said
proceeding was taken". It is claimed by the defendants that they
learned only of the judgment on March 24, 1977. This contention
of the defendants cannot be given weight because notice to counsel
is notice to the client and since the defendants' former counsel
Atty. Cosme D. Monteclaros received the judgment on November
8, 1976, then the date to be reckoned with is the date when the
defendants' counsel received the judgment which is November 8,
1976.  Court held that—
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, order or other proceeding to be set aside,
and not more than six (6) months after such judgment or 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 petitioner's
good and substantial cause of action or defense, as the case may
be. 
In the case of Turqueza vs. Hernando, L-51626, April 30, 1980, 97 SCRA 483, this
 

This Court is in sympathy with the pathetic plight of the defendants The Court has said time and again that the doctrine of finality of
if it is really true that the order declaring them in default was not judgments is grounded on fundamental considerations of public
through a fault of their own but since they slept on their rights for policy and sound practice that at the risk of occasional error, the
quite a time such as would bar the present petition, this Court is not judgments of courts must become final at some definite date fixed
in a position to extend the period within which to file the present by law. The law gives an exception or "last chance" of a timely
petition for relief from judgment.  petition for relief from judgment within the reglementary period
(within 60 days from knowledge and 6 months from entry of
In view of the foregoing, the petition for relief from judgment is judgment) under Rule 38 supra, but such grace period must be
hereby denied for having been filed beyond the reglementary taken as "absolutely fixed, inextendible, never interrupted and
period."  cannot be subjected to any condition or contingency. Because the
period fixed is itself devised to meet a condition or contingency
Attributing grave abuse of discretion on the part of respondent Judge in issuing the (fraud, accident, mistake or excusable neglect), the equitable
aforesaid Order, petitioner now comes to Us through the instant petition praying that remedy is an act of grace, as it were, designed to give the
the said challenged order be set aside and declared null and void.  aggrieved party another and last chance, and failure to avail of
such last chance within the grace period fixed by the statute or the
The only issue then to be resolved in this case is whether or not the lower court acted Rules of Court is fatal. 
with grave abuse of discretion and/or without jurisdiction in denying the Petition for
Relief from judgment for having been filed out of time.  The rule, therefore, is that in order for a petition for relief filed under Rule 38 to be
entertained by the court, the petitioner must satisfactorily show that he has faithfully
The pertinent provisions of Rule 38 of the Revised Rules of Court on "Relief from and strictly complied with the provisions of said Rule 38. Consequently, in assailing
Judgments, Orders or Other Proceedings" state—  the lower court's dismissal of his petition for relief for having been filed out of time,
it is incumbent upon herein petitioner to show that the said petition was filed within
the reglementary period specified in Section 3, Rule 38. He has failed to do so,
Sec. 2. Petition to Court of First Instance for relief from judgment instead he argues on the merits of his petition for relief, without first showing that the
or other proceeding thereof.—When a judgment or order is same was filed on time in the court below. On this ground alone, the instant case
entered, or any other proceeding is taken, against a party in a Court should be dismissed. 
of First Instance through fraud, accident, mistake or excusable
negligence, he may file a petition in such court and in the same
cause praying that the judgment, order or proceeding be set aside.  Moreover, We agree with the respondent Judge that the petition for relief was filed
late. We note that the decision sought to be set aside was rendered on October 27,
1976. Petitioner, through counsel, received a copy of the said decision on November

62
8, 1976, and he filed his petition for relief from judgment only on April 18, 1977.
Clearly, the same was filed beyond the period allowed by Section 3 of Rule 38. As in
previous cases, this Court holds and so rules that the instant petition filed after the
lapse of the reglementary period cannot be entertained. 7
Arguing on the merits of his petition for relief, petitioner's main contention is that the
order of default was illegally and improperly issued because he was not notified of
the pre-trial on October 2, 1975, consequently, all subsequent proceedings including
the judgment by default were all null and void.  and accompanied by an affidavit of merit, the allegations of fact made therein do not
At first blush, petitioner's aforesaid contention appears very tenable, for indeed it is
settled that a declaration of default, in the absence of a notice of pre-trial constitutes
denial of due process. 8 But a deeper examination of the pleadings and the record of
the case would show that petitioner was present during the pre-trial conference on
July 29, 1975 when the lower court re-set the pre-trial to October 2, 1975. On the
said date, however, although notified, both petitioner and his counsel did not appear,
hence, the declaration of default pursuant to Sec. 2, of Rule 20 of the Rules of Court.  matter for petitioner to have secured the affidavit of Nemesio Jubay, the Notary
The case filed before the lower court is for annulment of a deed of sale allegedly
executed by Segunda O. Vda. de Arcilla in favor of one of his sons, herein petitioner
Laureano Arcilla. It was originally filed and instituted by the said Segunda O. Vda.
de Arcilla but she died even before the pre-trial of the case and was therefore
substituted by her other children. The other defendant in the case Nemesio Jubay was
the Notary Public who allegedly notarized the document. From the evidence
presented by the plaintiffs, the lower court found—
A careful perusal of the Deed of Sale (Exh. "E") sought to be
annulled bear and bare that the same was written in English and
that Segunda O. Vda. de Arcilla is an illiterate who do not know
how to write having affixed her thumbmark on the said document
which fact is corroborated by the testimony of Marcela Arcilla. 
While it is true that the natural presumption is that one always acts with due care and
signs with full knowledge of all the contents of a document for which he can not
repudiate the transaction (Abaya vs. Standard Vaccuume Oil Co. L-9511, August 30,
1957; Javier vs. Javier, 7 Phil . 261; Tan Tua vs, Jy Liao Sontua, 56 Phil. 20) this
presumption referred to cannot apply in the case at bar when one of the parties is
unable to read and write the contract in a language not understood by one of the
parties (Art. 1332, New Civil Code). In both cases, the person enforcing the contract
must show the terms thereof have been fully explained to the party (Ayala vs.
Balderama Lumber Manufacturing Co., Inc. (CA) 490 O.G. 980) 
Furthermore, the record is replete of proof that the care and custody of the deceased
Segunda O. Vda. de Arcilla was burdened on the defendant Laureano Arcilla and this
fact, coupled with the age, infirmity and intelligence of the former, advantage may
have favored the situation of the latter which lead to the consummation of the
questioned document (Exh. "E") by virtue of which the latter has the burden of proof
to dislodge such misapprehension. With respect to Atty. Nemesio Jubay, he should
be reminded of the protective mandate of Art. 1332 of the New Civil Code for those
illiterates and those documents drawn in English or Spanish." 
Examining the petition for relief filed by petitioner, while the same appears verified
prove either fraud, accident, mistake, or excusable negligence, nor show a valid
defense in favor of the party seeking relief ... The general allegation made therein to
the effect that "petitioner has a good and valid defense considering that the late
Segunda O. Vda. de Arcilla voluntarily and willingly executed the document of
Sale", is not sufficient compliance with the rules. Since the Deed of Sale sought to be
annulled was written in English and it is admitted that Segunda O. Vda. de Arcilla is
an illiterate and do not know how to read and write, it would have been an easy
Public who allegedly notarized the document as well as the witnesses to the
execution and signing thereof to show that the contents of the document was fully
explained to said Segunda O. Vda. de Arcilla and that she voluntarily signed the
same. This way, petitioner could convince the Court that in his legal fight, he had a
leg on which to stand. It thus results that reversal of the order complained of, as well
as the judgment rendered thereon would be an Idle ceremony. It would not advance
or for that matter serve the ends of justice. It would only result in another waste of
time, effort and expense. Paraphrasing what this Court has stated in Paner vs.
Yatco  9 it would be pointless to re-open this case, "for like a mirage it would merely
raise false hopes and in the end avail her (him) nothing." 
For the reasons stated above, the Order of the lower court dated May 8, 1977
denying herein petitioner's Petition for Relief should be affirmed. 
WHEREFORE, the instant special civil action is hereby DISMISSED. Costs against
petitioner. 
SO ORDERED.
63

G.R. No. 156118. November 19, 2004.*
PABLO T. TOLENTINO and TEMPUS PLACE REALTY MANAGEMENT
CORPORATION, petitioners, vs. HON. OSCAR LEVISTE, Presiding Judge,
RTC, Quezon City, Br. 97 and SPOUSES GERARDO CINCO, JR. and
PAMELA H. CINCO, respondents.
Judgments; Annulment; Grounds; Extrinsic Fraud; The overriding
consideration when extrinsic fraud is alleged is that the fraudulent scheme of the
prevailing litigant prevented a party from having his day in court.—Under the Rule,
an action for annulment of judgments may only be availed of on the following
grounds: (1) extrinsic fraud and (2) lack of jurisdiction. Extrinsic fraud refers to any
fraudulent act of the prevailing party in the litigation which is committed outside of
the trial of the case, whereby the unsuccessful party has been prevented from
exhibiting fully his case, by fraud or deception practiced on him by his opponent.
Fraud is regarded as extrinsic where it prevents a party from having a trial or from
presenting his entire case to the court, or where it operates upon matters pertaining
not to the judgment itself but to the manner in which it is procured. The overriding
consideration when extrinsic fraud is alleged is that the fraudulent scheme of the
prevailing litigant prevented a party from having his day in court.
_______________
*
 SECOND DIVISION.
275
VOL. 443, NOVEMBER 19, 2004  275  Petitioners Pablo T. Tolentino and Tempus Place Realty Management Corporation
Tolentino vs. Leviste
Same; Same; Same; Same; Negligence; Counsel; A client is bound by the
mistakes of his counsel except when the negligence of his counsel is so gross,
reckless and inexcusable that the client is deprived of his day in court.—x x x
Litigants represented by counsel should not expect that all they need to do is sit back,
relax and await the outcome of their case. To agree with petitioner’s stance would
enable every party to render inutile any adverse order or decision through the simple
expedient of alleging negligence on the part of his counsel. The Court will not
countenance such ill-founded argument which contradicts long-settled doctrines of
trial and procedure. We reiterate the rule that a client is bound by the mistakes of his
counsel except when the negligence of his counsel is so gross, reckless and
inexcusable that the client is deprived of his day in court. Only when the application
of the general rule would result in serious injustice should the exception apply.
Same; Same; Same; Same; Lack of Jurisdiction; Lack of jurisdiction as a
ground for annulment of judgment refers to either lack of jurisdiction over the
person of the defending party or over the subject matter of the claim.—Lack of
jurisdiction as a ground for annulment of judgment refers to either lack of
jurisdiction over the person of the defending party or over the subject matter of the
claim. Jurisdiction over the person of the defendant or respondent is acquired by
voluntary appearance or submission by the defendant or respondent to the court, or
by coercive process issued by the court to him, generally by the service of summons.
Jurisdiction; Exercise of Jurisdiction; Distinguished; Jurisdiction is not the
same as the exercise of jurisdiction.—Jurisdiction is not the same as the exercise of
jurisdiction. As distinguished from the exercise of jurisdiction, jurisdiction is the
authority to decide a cause, and not the decision rendered therein. Where there is
jurisdiction over the person and the subject matter, the decision on all other questions
arising in the case is but an exercise of the jurisdiction. And the errors which the
court may commit in the exercise of jurisdiction are merely errors of judgment which
are the proper subject of an appeal.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
276
276  SUPREME COURT REPORTS ANNOTATED 
Tolentino vs. Leviste
     Camacho and Associates for petitioners.
     Epifanio Cua for respondents.
PUNO, J.:
seek the review and reversal of the decision and amended decision of the Court of
Appeals in CA-G.R. SP No. 59506 entitled "Tempus Place Realty Management
Corporation and Pablo T. Tolentino vs. Hon. Oscar Leviste, Presiding Judge, RTC -
Quezon City, Branch 97 and Sps. Gerardo Cinco, Jr., and Pamela H. Cinco." The
Court of Appeals denied petitioners’ petition for annulment of the decision of the
Regional Trial Court (RTC) of Quezon City, Branch 97, on the action for specific
performance with damages filed by respondents Spouses Gerardo and Pamela Cinco
against them.
The antecedent facts are as follows:
On October 18, 1996, respondents Spouses Gerardo Cinco, Jr. and Pamela Cinco
filed a complaint for specific performance with damages against petitioners Tempus
Place Realty Management Corporation and Pablo T. Tolentino. The complaint
64
alleged that respondents purchased from petitioners a condominium unit in Tempus
Place Condominium II at Katarungan St., Diliman, Quezon City. Despite, however,
the execution of the Deed of Absolute Sale and the delivery of the owner’s copy of
the condominium certificate of title, petitioners failed to deliver possession of the
unit because they have allegedly leased it to a third party. The complaint further
alleged that petitioners refused to pay the corresponding capital gains tax and
documentary stamp tax on the transaction, and execute the necessary board
resolution for the transfer of the property, thus preventing respondents from
registering the Deed of Absolute Sale and transferring the title to the unit in their
names. The respondents claimed that because petitioners refused to deliver
possession of the unit and instead leased it to a third party, they are entitled to a
reasonable rental value in the amount of P20,000.00 a month from May 1994 until
the time the possession of the unit is delivered to them. They also claimed moral
damages in the amount of P1,000,000.00 and exemplary damages in the amount of
P1,000,000.00 plus attorney’s fees in the amount of P1,000,000.00.1  became final and executory on March 26, 1999 and was recorded in the Book of
As petitioners failed to file their answer to the complaint, Hon. Oscar Leviste,
Presiding Judge, RTC, Branch 97, Quezon City, issued an order on January 17, 1997
granting respondents’ motion to declare petitioners in default. He also appointed the
Branch Clerk of Court to act as commissioner to receive respondents’ evidence ex
parte.2 After reception of evidence, the trial court, on April 15, 1997, issued a
decision for the respondents. It stated:
This Court after considering the oral and documentary evidences presented by the
plaintiff finds that the allegation contained in their pleadings are all true facts and are
entitled to the relief as prayed for, to wit:
1) To deliver to the plaintiffs the possession of the condominium unit
covered by CCT No. 5002 of the Register of Deeds of Quezon City;
2) To pay the corresponding capital gains tax and documentary stamps tax
on the transaction, and deliver the receipts thereof to the plaintiffs;
3) To execute and deliver to the plaintiffs the necessary Board Resolution;
4) Jointly and severally, to pay plaintiffs the following:
a. Actual damages in the amount of P20,000.00 a month from May
1994, up to the time possession of the condominium units (sic) is
delivered to the plaintiffs representing the reasonable rental value
of the unit;
b. Moral damages in the amount of P1,000,000.00;
c. Exemplary damages in the amount of P1,000,000.00;
d. Attorney’s fees in the amount of P1,000,000.00.3 
Petitioners thereafter filed a motion for new trial. They contended that their right to
fair and impartial trial had been impaired by reason of accident, mistake or excusable
negligence of their former counsel, a certain Atty. Villamor.4 The trial court denied
the motion for new trial for lack of merit.5 
On November 3, 1997, petitioners, through their new counsel, Atty. Ricardo A.
Santos, filed a notice of appeal of the April 15 decision of the trial court.6 The Court
of Appeals, however, dismissed the appeal on February 26, 1999 on the ground of
abandonment as petitioners failed to submit the required appeal brief. 7 The decision
Entries of Judgment.8 
On July 4, 2000, petitioners filed with the Court of Appeals an action for annulment
of judgment based on the following grounds:
1. The judgment in default granted reliefs in excess of what is prayed for in
the complaint in gross violation of the clear provisions of the 1997 Rules of
Civil Procedure.
2. The judgment in default awarded unliquidated damages in palpable
violation of the mandatory provision of Section 3[,] Rule 9, 1997 Rules of
Civil Procedure.
3. The judgment in default is in gross violation of Section 14, Article VIII,
1987 Constitution and Section 1, Rule 36, 1997 Rules of Civil Procedure.
4. The judgment in default was rendered in violation of the rights of the
petitioner to substantive and procedural due process.
5. Corrollarily, the gargantuan award for damages by the court a quo in
patent and blatant violation of the law and settled jurisprudence [is]
unconscionable and clearly violative of substantial justice and equities of
the case.
6. Petitioners have good and substantial defenses in respect of private
respondents’ claims.
7. A fortiori, the court has no jurisdiction and/or authority and has
committed a grave abuse of discretion in awarding amounts in excess of
65
 what is prayed for in the complaint nor proved by the evidence as well as in
palpable violation of the mandatory provisions of the Civil Code and the
Rules of Court and applicable decisions of the Supreme Court.
Consequently, the challenged judgment in default is an absolute nullity.9  of the Court of Appeals. They raise the following arguments:
On April 23, 2002, the appellate court issued a decision modifying the trial court
decision. It explained that the annulment of judgment may be based on the grounds
of extrinsic fraud and lack of jurisdiction, and it is important that petitioner failed to
move for new trial, or appeal, or file a petition for relief, or take other appropriate
remedies assailing the questioned judgment, final order or resolution through no fault
attributable to him. The Court of Appeals found that the trial court decision may not
be annulled on the ground of extrinsic fraud. It stated that the failure of petitioners’
counsel to file an appellant’s brief in the Court of Appeals did not amount to
extrinsic fraud as to justify annulment of judgment, as it was not shown that their
former counsel’s omission was tainted with fraud and/or deception tantamount to
extrinsic or collateral fraud. Neither may it be annulled on the ground of lack of
jurisdiction as the action for specific performance and damages was within the
jurisdiction of the RTC. Nonetheless, the appellate court, in the interest of justice and
in the exercise of its sound discretion in determining the amount of damages that
may be awarded, held that the moral damages in the amount of one million pesos
(P1,000,000.00) was excessive. It lowered the moral damages to P100,000.00. It also
reduced the exemplary damages to P100,000.00, and the attorney’s fees to
P100,000.00.10 
Respondents filed a motion for reconsideration of the Decision of the Court of
Appeals. On November 18, 2002, the Court of Appeals issued an Amended Decision,
the dispositive portion of which reads:
WHEREFORE, the Motion for Reconsideration is partly GRANTED in that
the dispositive portion of the assailed decision is modified as follows:
a) Actual damages in the amount of P10,000.00 a month from May 1994, up
to the time possession of the condominium units [sic] is delivered to the
plaintiffs (private respondents herein) representing the reasonable rental
value of the unit.
b) Moral damages in the amount of One Hundred Thousand Pesos
(P100,000.00);
c) Exemplary damages in the amount of One Hundred Thousand Pesos
(P100,000.00); and,
d) Attorney’s fees in the amount of One [H]undred Thousand Pesos
(P100,000.00).
SO ORDERED.11 
Petitioners filed the instant petition for review of the decision and amended decision
1. The petitioners can avail of the remedy of annulment of judgment to
annul the decision of the RTC in Civil Case No. 96-29707 as Hon. Judge
Leviste had no jurisdiction and/or acted without jurisdiction in issuing the
April 15, 1997 Decision because:
a. The judgment in default granted reliefs in excess of what is
prayed for in the complaint in gross violation of the clear
provisions of the 1997 Rules of Civil Procedure.
b. The judgment in default awarded unliquidated damages in
palpable violation of the mandatory provision of Section 3[,] Rule
9, 1997 Rules of Civil Procedure.
c. The judgment in default is in gross violation of Sec. 14, Art.
VIII, 1987 Constitution and Sec. 1, Rule 36, 1997 Rules of Civil
Procedure.
d. The judgment in default was rendered in violation of the rights
of the petitioner to substantive and procedural due process.
2. The petitioners were prevented from having their day in court because of
the gross negligence of their former counsel, which gross negligence
amounts to extrinsic fraud.
3. The remedies of appeal, petition for relief or other remedies are no longer
available through no fault of petitioners.
4. The petitioners have valid and substantial defenses to respondents’ cause
of action.12 
The petition is without merit.
The issue that needs to be resolved in this petition for review is whether the Court of
Appeals erred in dismissing the petition for annulment of judgment filed by
petitioners.
66
The governing rule is Rule 47 of the 1997 Rules of Civil Procedure on Annulment of
Judgments or Final Orders and Resolutions. Sections 1 and 2 of the Rule provide for
its coverage and the grounds therefor, thus:
Sec. 1. Coverage. - This Rule shall govern the annulment by the Court of
Appeals of judgments or final orders and resolutions in civil actions of
Regional Trial Courts for which the ordinary remedies of new trial, appeal,
petition for relief or other appropriate remedies are no longer available
through no fault of the petitioner.
Sec. 2. Grounds for annulment. - The annulment may be based only on the
grounds of extrinsic fraud and lack of jurisdiction.
Extrinsic fraud shall not be a valid ground if it was availed of, or could have been
availed of, in a motion for new trial or petition for relief.
Under the Rule, an action for annulment of judgments may only be availed of on the
following grounds: (1) extrinsic fraud and (2) lack of jurisdiction.
Extrinsic fraud refers to any fraudulent act of the prevailing party in the litigation
which is committed outside of the trial of the case, whereby the unsuccessful party
has been prevented from exhibiting fully his case, by fraud or deception practiced on
him by his opponent. Fraud is regarded as extrinsic where it prevents a party from
having a trial or from presenting his entire case to the court, or where it operates
upon matters pertaining not to the judgment itself but to the manner in which it is
procured. The overriding consideration when extrinsic fraud is alleged is that the
fraudulent scheme of the prevailing litigant prevented a party from having his day in
court.13  ground of extrinsic fraud. It was however denied by the trial court. They filed a
Petitioners in this case did not allege nor present evidence of fraud or deception
employed on them by the respondents to deprive them of opportunity to present their
case to the court. They, however, assert that the negligence of their former counsel in
failing to file the appeal brief amounts to extrinsic fraud which would serve as basis
for their petition for annulment of judgment. We disagree. The Court has held that
when a party retains the services of a lawyer, he is bound by his counsel’s actions
and decisions regarding the conduct of the case. This is true especially where he does
not complain against the manner his counsel handles the suit.14 Such is the case here.
When the complaint was filed before the trial court, summons was served upon the
petitioners.15 They allegedly referred the matter to Atty. Villamor who was holding
office at the building owned and managed by respondent Tempus Place Realty
Management Corporation.16 However, after they have endorsed the summons to said
lawyer, they did not exert any effort to follow up the developments of the suit.
Hence, they were declared in default and judgment was rendered against them. Even
in the course of the appeal, they never bothered to check with their counsel, Atty.
Ricardo Santos, the status of the appeal. The notice of appeal was filed on November
3, 1997 and petitioners learned of the dismissal of the appeal in October 1999, after
petitioner Tolentino received notice of garnishment of his insurance benefits in
connection with the judgment in Civil Case No. Q-96-29207. It was only at that time
that they learned that Atty. Santos had migrated to Australia. This only shows that
petitioners, as what happened during the pendency of the case before the trial court,
never bothered to confer with their counsel regarding the conduct and status of their
appeal. The Court stated in Villaruel, Jr. vs. Fernando:17 
xxx Litigants represented by counsel should not expect that all they need to
do is sit back, relax and await the outcome of their case. To agree with
petitioner’s stance would enable every party to render inutile any adverse
order or decision through the simple expedient of alleging negligence on the
part of his counsel. The Court will not countenance such ill-founded
argument which contradicts long-settled doctrines of trial and procedure.18 
We reiterate the rule that a client is bound by the mistakes of his counsel except
when the negligence of his counsel is so gross, reckless and inexcusable that the
client is deprived of his day in court.19 Only when the application of the general rule
would result in serious injustice should the exception apply.20 We find no reason to
apply the exception in this case.
In addition, it is provided in Section 2 of Rule 47 that extrinsic fraud shall not be a
valid ground if it was availed of, or could have been availed of, in a motion for new
trial or petition for relief. In other words, it is effectively barred if it could have been
raised as a ground in an available remedial measure.21 The records show that after
petitioners learned of the judgment of default, they filed a motion for new trial on the
notice of appeal thereafter. Hence, they are now precluded from alleging extrinsic
fraud as a ground for their petition for annulment of the trial court decision.
We are also not persuaded by petitioners’ assertion that the trial court judge lacked
jurisdiction so as to justify the annulment of his decision in Civil Case No. Q-96-
29207. Lack of jurisdiction as a ground for annulment of judgment refers to either
lack of jurisdiction over the person of the defending party or over the subject matter
of the claim.22 Jurisdiction over the person of the defendant or respondent is acquired
by voluntary appearance or submission by the defendant or respondent to the court,
or by coercive process issued by the court to him, generally by the service of
summons. The trial court clearly had jurisdiction over the person of the defending
party, the petitioners herein, when the latter received the summons from the court.
On the other hand, jurisdiction over the subject matter of the claim is conferred by
law and is determined from the allegations in the complaint. Under the law, the
action for specific performance and damages is within the jurisdiction of the RTC.
67
Petitioners’ submission, therefore, that the trial court lacked jurisdiction does not
hold water.
We note that petitioners’ arguments to support their stand that the trial court did not
have jurisdiction actually pertain to the substance of the decision. Jurisdiction is not
the same as the exercise of jurisdiction. As distinguished from the exercise of
jurisdiction, jurisdiction is the authority to decide a cause, and not the decision
rendered therein. Where there is jurisdiction over the person and the subject matter,
the decision on all other questions arising in the case is but an exercise of the
jurisdiction. And the errors which the court may commit in the exercise of
jurisdiction are merely errors of judgment which are the proper subject of an
appeal.23 The errors raised by petitioners in their petition for annulment assail the
content of the decision of the trial court and not the court’s authority to decide the
suit. In other words, they relate to the court’s exercise of its jurisdiction, but
petitioners failed to show that the trial court did not have the authority to decide the
case.
Based on the foregoing discussion, it is clear that petitioners’ petition for annulment
of judgment had no basis and was rightly dismissed by the Court of Appeals.
IN VIEW WHEREOF, the petition at bar is DENIED.
SO ORDERED.
G.R. No. 206653. February 25, 2015.*
 
YUK LING ONG, petitioner, vs. BENJAMIN T. CO, respondent.
Remedial Law; Civil Procedure; Annulment of Judgment; Rule 47 of the 1997
Rules of Civil Procedure, as amended, governs actions for annulment of judgments
or final orders and resolutions, and Section 2 thereof explicitly provides only two (2)
grounds for annulment of judgment, that is, extrinsic fraud and lack of jurisdiction.
—Annulment of judgment is a recourse equitable in character, allowed only in
exceptional cases as where there is no available or other adequate remedy. Rule 47 of
the 1997 Rules of Civil Procedure, as amended, governs actions for annulment of
judgments or final orders and resolutions, and Section 2 thereof explicitly provides
only two grounds for annulment of judgment, that is, extrinsic fraud and lack of
jurisdiction. Annulment of judgment is an equitable principle not because it allows a
party-litigant another opportunity to reopen a judgment that has long lapsed into
finality but because it enables him to be discharged from the burden of being bound
to a judgment that is an absolute nullity to begin with.
Same; Same; Same; Lack of jurisdiction on the part of the trial court in
rendering the judgment or final order is either lack of jurisdiction over the subject
matter or nature of the action, or lack of jurisdiction over the person of the
petitioner.—Lack of jurisdiction on the part of the trial court in rendering the
judgment or final order is either lack of jurisdiction over the subject matter or nature
of the action, or lack of jurisdiction over the person of the petitioner. The former is a
matter of substantive law because statutory law defines the jurisdiction of the courts
over the subject matter or nature of the action. The latter is a matter of procedural
law, for it involves the service of summons or other processes on the petitioner.
Same; Same; Same; Jurisdiction over the defendant is acquired either upon a
valid service of summons or the defendant’s voluntary appearance in court.—In the
present case, petitioner contends that there was lack of jurisdiction over her person
because there was an
_______________
*  SECOND DIVISION.
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VOL. 752, FEBRUARY 25, 2015 43
Yuk Ling Ong vs. Co
invalid substituted service of summons. Jurisdiction over the defendant is
acquired either upon a valid service of summons or the defendant’s voluntary
appearance in court. If the defendant does not voluntarily appear in court, jurisdiction
can be acquired by personal or substituted service of summons as laid out under
Sections 6 and 7 of Rule 14 of the Rules of Court.
PETITION for review on certiorari of the decision and resolution of the Court of
Appeals.
The facts are stated in the opinion of the Court.
  Ephraim B. Cortez for petitioner.
  Mark John F. Dumbrique for respondent.
 
MENDOZA, J.:
68
  
In court proceedings, there is no right more cherished than the right of every
litigant to be given an opportunity to be heard. This right begins at the very moment
that summons is served on the defendant. The Rules of Court places utmost
importance in ensuring that the defendant personally grasp the weight of
responsibility that will befall him. Thus, it is only in exceptional circumstances that
constructive notification, or substituted service of summons, is allowed. If the server
falls short of the rigorous requirements for substituted service of summons, then the
Court has no other option but to strike down a void judgment, regardless of the
consequences.
This is a petition for review on certiorari seeking to reverse and set aside the
June 27, 2012 Decision1 and the March 26, 2013 Resolution2 of the Court of Appeals
(CA) in C.A.-G.R. S.P. No. 106271, which denied the petition for annulment of
judgment.
_______________
1  Rollo, pp. 20-30.
2  Id., at p. 31.
44
44 SUPREME COURT REPORTS ANNOTATED
Yuk Ling Ong vs. Co
The Facts
 
Petitioner Yuk Ling Ong (petitioner), a British-Hong Kong national, and
respondent Benjamin Co (respondent),a Filipino citizen, were married on October 3,
1982 at Ellinwood-Malate Church.3
Sometime in November 2008, petitioner received a subpoena from the Bureau of
Immigration and Deportation (BID) directing her to appear before the said agency
because her permanent residence visa was being subjected to cancellation
proceedings. Reportedly, her marriage with respondent was nullified by the court.
When petitioner appeared before the BID, she was furnished with the copies of
the following documents: (1) petition for declaration of nullity of marriage filed as
Civil Case No. CV-01-0177; (2) petition for declaration of nullity of marriage
docketed as Civil Case No. 02-0306; (3) Decision, 4 dated December 11, 2002, in
Civil Case No. 02-0306 of the Regional Trial Court, Branch 260 (RTC), Parañaque
City, declaring the marriage between petitioner and respondent as void ab initio; and
(4) their marriage contract 5 with the subject decision annotated thereon. Petitioner
was perplexed that her marriage with respondent had been declared void ab initio.
The above documents showed that on April 26, 2001, respondent filed a petition
for declaration of nullity6 on the ground of psychological incapacity before the RTC,
which was docketed as Civil Case No. CV-01-0177. Respondent stated that
petitioner’s address was 600 Elcano St., Binondo, Manila. There was no showing of
its status, whether pending, withdrawn or terminated.
_______________
3  Id., at p. 67.
4  Id., at pp. 32-34.
5  Id., at p. 35.
6  Id., at pp. 61-66.
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Yuk Ling Ong vs. Co
On July 19, 2002, respondent filed another petition for declaration of nullity 7 on
the ground of psychological incapacity before the RTC, docketed as Civil Case No.
02-0306. Respondent indicated that petitioner’s address was 23 Sta. Rosa Street, Unit
B-2 Manresa Garden Homes, Quezon City. On July 29, 2002, the RTC issued
summons.8In his Server’s Return,9 process server Rodolfo Torres, Jr. stated that, on
August 1, 2002, substituted service of summons with the copy of the petition was
effected after several futile attempts to serve the same personally on petitioner. The
said documents were received by Mr. Roly Espinosa, a security officer.
On December 11, 2002, the RTC rendered a decision 10 in Civil Case No. 02-0306
finding respondent’s marriage with petitioner as void ab initio on the ground of
psychological incapacity under Article 36 of the Family Code. It stated that
summons was served on petitioner on August 1, 2002, but she failed to file her
responsive pleading within the reglementary period. The public prosecutor also
stated that there were no indicative facts to manifest collusion. Thus, the RTC
concluded that petitioner was psychologically incapacitated to perform her essential
marital obligations.
Consequently, petitioner filed a petition for annulment of judgment 11 under Rule
47 of the Rules of Court before the CA on November 24, 2008, claiming that she was
never notified of the cases filed against her. She prayed that the RTC decision, dated
December 11, 2002, in Civil Case No. 02-0306, be nullified on the grounds of
extrinsic fraud and lack of jurisdiction.
Petitioner alleged that first, respondent committed extrinsic fraud because, as
seen in Civil Case No. CV-01-0177, he deliberately indicated a wrong address to
prevent her from
_______________
7   Id., at pp. 73-79.
8   Id., at p. 85.
9   Id., at p. 86.
10  Id., at pp. 32-34.
11  Id., at pp. 49-55.
46
46 SUPREME COURT REPORTS ANNOTATED
Yuk Ling Ong vs. Co
participating in the trial; second, jurisdiction over her person was not acquired in
Civil Case No. 02-0306 because of an invalid substituted service of summons as no
sufficient explanation, showing impossibility of personal service, was stated before
69
resorting to substituted service of summons; third, the alleged substituted service
was made on a security guard of their townhouse and not on a member of her
household; and fourth, she was not psychologically incapacitated to perform her
marital obligations.12
Ruling of the Court of Appeals
On June 27, 2012, the CA rendered the assailed decision finding the petition for
annulment of judgment to be devoid of merit. It held that there was no sufficient
proof to establish that respondent employed fraud to insure petitioner’s
nonparticipation in the trial of Civil Case No. CV-01-0177.
Relying on Robinson v. Miralles,13 the CA further ruled that the substituted
service of summons in Civil Case No. 02-0306 was valid. It found that there was a
customary practice in petitioner’s townhouse that the security guard would first
entertain any visitors and receive any communication in behalf of the homeowners.
With this setup, it was obviously impossible for the process server to personally
serve the summons upon petitioner. It also declared that the process server’s return
carries with it the presumption of regularity in the discharge of a public officer’s
duties and functions.
Petitioner moved for reconsideration, but her motion was denied by the CA in its
Resolution,14 dated March 26, 2013.
Hence, this petition, anchored on the following:
_______________
12  Id., at pp. 49-54.
13  540 Phil. 1; 510 SCRA 678 (2006).
14  Rollo, p. 31.
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VOL. 752, FEBRUARY 25, 2015 47
Yuk Ling Ong vs. Co
ISSUES
1. Whether or not the Trial Court in Civil Case No. 02-0306 validly acquired
jurisdiction over the person of the petitioner.
2. Whether or not the facts proven by the petitioner constitute extrinsic
fraud within the purview of Rule 47 of the Rules of Court.15
 
Petitioner argues that there was an invalid substituted service of summons. The
process server’s return only contained a general statement that substituted service
was resorted to “after several futile attempts to serve the same personally,” 16 without
stating the dates and reasons of the failed attempts. Petitioner also reiterates her
argument that extrinsic fraud was employed.
In his Comment,17 filed on July 9, 2014, respondent contended that the server’s
return satisfactorily stated the reason for the resort to a substituted service of
summons on August 1, 2002; and it was improbable that petitioner failed to receive
the summons because it was sent to the same address which she declared in this
present petition.
Petitioner filed her Reply18 on October 8, 2014 reiterating her previous
arguments.
The Court’s Ruling
The Court finds merit in the petition.
Annulment of judgment is a recourse equitable in character, allowed only in
exceptional cases as where there is no available or other adequate remedy. Rule 47 of
the 1997 Rules of Civil Procedure, as amended, governs actions for annul-
_______________
15  Id., at p. 6.
16  Id., at p. 86.
17  Id., at pp. 124-133.
18  Id., at pp. 144-145.
48
48 SUPREME COURT REPORTS ANNOTATED
Yuk Ling Ong vs. Co
ment of judgments or final orders and resolutions, and Section 2 thereof
explicitly provides only two grounds for annulment of judgment, that is, extrinsic
fraud and lack of jurisdiction.19 Annulment of judgment is an equitable principle not
because it allows a party-litigant another opportunity to reopen a judgment that has
long lapsed into finality but because it enables him to be discharged from the burden
of being bound to a judgment that is an absolute nullity to begin with.20
Petitioner raises two grounds to support her claim for annulment of judgment: (1)
extrinsic fraud and (2) lack of jurisdiction. Her contention on the existence of
extrinsic fraud, however, is too unsubstantial to warrant consideration. The
discussion shall then focus on the ground of lack of jurisdiction.
Lack of jurisdiction on the part of the trial court in rendering the judgment or
final order is either lack of jurisdiction over the subject matter or nature of the action,
or lack of jurisdiction over the person of the petitioner. The former is a matter of
substantive law because statutory law defines the jurisdiction of the courts over the
subject matter or nature of the action. The latter is a matter of procedural law, for it
involves the service of summons or other processes on the petitioner. 21
In the present case, petitioner contends that there was lack of jurisdiction over
her person because there was an invalid substituted service of summons. Jurisdiction
over the defendant is acquired either upon a valid service of summons or the
_______________
19  Antonio v. Register of Deeds of Makati City, G.R. No. 185663, June 20,
2012, 674 SCRA 227, 236, citing Ramos v. Combong, Jr., 510 Phil. 277, 281-282;
473 SCRA 499, 504 (2005).
70
 20  Barco v. Court of Appeals, 465 Phil. 39, 64; 420 SCRA 162, 180 (2004).
21  Pinausukan Seafood House v. Far East Bank & Trust Company,G.R. No.
159926, January 20, 2014, 714 SCRA 226, 244.
49
VOL. 752, FEBRUARY 25, 2015 49
Yuk Ling Ong vs. Co
defendant’s voluntary appearance in court.22 If the defendant does not voluntarily
appear in court, jurisdiction can be acquired by personal or substituted service of
summons as laid out under Sections 6 and 7 of Rule 14 of the Rules of Court, which
state:
Sec. 6. Service in person on defendant.—Whenever practicable, the summons
shall be served by handing a copy thereof to the defendant in person, or, if he refuses
to receive and sign for it, by tendering it to him.
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 defendant’s residence with
some person of suitable age and discretion then residing therein, or (b) by leaving the
copies at defendant’s office or regular place of business with some competent person
in charge thereof.
 
The landmark case of Manotoc v. CA (Manotoc)23thoroughly discussed the
rigorous requirements of a substituted service of summons, to wit: x x x
(1) Impossibility of Prompt Personal Service
x x x
For substituted service of summons to be available, there must be several
attempts by the sheriff to personally serve the summons within a reasonable period
of one month which eventually resulted in failure to prove impossibility of prompt
service. “Several attempts” means at least three (3) tries, preferably on at least
two different dates. In addition, the sheriff must cite why such efforts were
unsuccessful. It is only then that impossibility of service can be confirmed or
accepted.
_______________
22  Ellice Agro-Industrial Corp. v. Young, G.R. No. 174077, November 21,
2012, 686 SCRA 51, 61.
23  530 Phil. 454, 469-470; 499 SCRA 21, 35-37 (2006).
50
50 SUPREME COURT REPORTS ANNOTATED
Yuk Ling Ong vs. Co
(2) Specific Details in the Return
The sheriff must describe in the Return of Summons the facts and circumstances
surrounding the attempted personal service. The efforts made to find the defendant
and the reasons behind the failure must be clearly narrated in detail in the
Return. The date and time of the attempts on personal service, the inquiries
made to locate the defendant, the name/s of the occupants of the alleged
residence or house of defendant and all other acts done, though futile, to serve
the summons on defendant must be specified in the Return to justify substituted
service.
(3) A Person of Suitable Age and Discretion
x x x
The sheriff must therefore determine if the person found in the alleged dwelling
or residence of defendant is of legal age, what the recipient’s relationship with the
defendant is, and whether said person comprehends the significance of the receipt of
the summons and his duty to immediately deliver it to the defendant or at least notify
the defendant of said receipt of summons. These matters must be clearly and
specifically described in the Return of Summons. (Emphases and underscoring
supplied)
 
The pronouncements of the Court in Manotoc have been applied to several
succeeding cases. In Pascual v. Pascual,24 the return of summons did not show or
indicate the actual exertion or positive steps taken by the officer or process server in
serving the summons personally to the defendant. Similarly, in Spouses Afdal v.
Carlos,25 the process server’s indorsements therein failed to state that the personal
service on the defendants was rendered impossible and that efforts were made to find
them personally. In both those cases, the
_______________
24  606 Phil. 451; 607 SCRA 288 (2009).
25  651 Phil. 104; 636 SCRA 389 (2010).
51
VOL. 752, FEBRUARY 25, 2015 51
Yuk Ling Ong vs. Co
Court ruled that the meticulous requirements for substituted service of summons
were not met.
There are cases, however, in which Manotoc was applied, but, nevertheless, it
was ruled that there was no lack of jurisdiction over the person of the defendant.
In Sagana v. Francisco,26 the diligent efforts exerted by the sheriff to locate the
respondent were determined, not only based on the sheriff’s return, but also on the
process server’s notation and case records. In the case of Wong v. Factor-
Koyama,27 on the other hand, even if the sheriff performed an invalid substituted
service of summons, jurisdiction over the person of defendant was obtained because
the latter had actively participated in trial, amounting to a voluntary appearance
under Section 20 of Rule 14.28
In the case at bench, the summons in Civil Case No. 02-0306 29 was issued on
July 29, 2002. In his server’s return,30the process server resorted to substituted
service of summons on August 1, 2002. Surprisingly, the process server immediately
opted for substituted service of summons after only two (2) days from the issuance of
the summons. The server’s return stated the following:
71
 
SERVER’S RETURN
THIS IS TO CERTIFY THAT on August 1, 2002, substituted service of
summons with copy of petition, were effected to respondent, Yuk Ling H. Ong, at
the Unit B-2, No. 23 Sta. Rosa St., Manresa Garden Homes,
_______________
26  617 Phil. 387; 602 SCRA 184 (2009).
27  616 Phil. 239; 600 SCRA 256 (2009).
28  Section 20. Voluntary Appearance.—The defendant’s voluntary
appearance in the action shall be equivalent to service of summons. The inclusion in
a motion to dismiss of other grounds aside from lack of jurisdiction over the person
of the defendant shall not be deemed a voluntary appearance.
29  Rollo, p. 50.
30  Id., at p. 86.
52
52 SUPREME COURT REPORTS ANNOTATED
Yuk Ling Ong vs. Co
Manresa Garden City, Quezon City, after several futile attempts to serve the
same personally. The said documents were received by Mr. Roly Espinosa of
sufficient age and discretion, the Security Officer thereat.
Therefore, respectfully returning to Court, original copy of summons, Duly
Served, this 2nd day of August, 2002.
RODOLFO P. TORRES, JR.
   Process Server
(Emphasis supplied)
 
The server’s return utterly lacks sufficient detail of the attempts undertaken by
the process server to personally serve the summons on petitioner. The server simply
made a general statement that summons was effected after several futile attempts to
serve the same personally. The server did not state the specific number of attempts
made to perform the personal service of summons; the dates and the corresponding
time the attempts were made; and the underlying reason for each unsuccessful
service. He did not explain either if there were inquiries made to locate the petitioner,
who was the defendant in the case. These important acts to serve the summons on
petitioner, though futile, must be specified in the return to justify substituted service.
The server’s return did not describe in detail the person who received the
summons, on behalf of petitioner. It simply stated that the summons was received
“by Mr. Roly Espinosa of sufficient age and discretion, the Security Officer thereat.”
It did not expound on the competence of the security officer to receive the summons.
Also, aside from the server’s return, respondent failed to indicate any portion of
the records which would describe the specific attempts to personally serve the
summons. Respondent did not even claim that petitioner made any voluntary
appearance and actively participated in Civil Case No. 02-0306.
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VOL. 752, FEBRUARY 25, 2015 53
Yuk Ling Ong vs. Co
The case of Robinson v. Miralles, cited by the CA, is not applicable. In that case,
the return described in thorough detail how the security guard refused the sheriff’s
entry despite several attempts. The defendant in the said case specifically instructed
the guard to prevent anybody to proceed to her residence. In the present case, the
attempts made by the process server were stated in a broad and ambiguous statement.
The CA likewise erred in ruling that the presumption of regularity in the
performance of official duty could be applied in the case at bench. This presumption
of regularity, however, was never intended to be applied even in cases where there
are no showing of substantial compliance with the requirements of the rules of
procedure. Such presumption does not apply where it is patent that the sheriff’s or
server’s return is defective.31 As earlier explained, the server’s return did not comply
with the stringent requirements of substituted service of summons.
Given that the meticulous requirements in Manotoc were not met, the Court is
not inclined to uphold the CA’s denial of the petition for annulment of judgment for
lack of jurisdiction over the person of petitioner because there was an invalid
substituted service of summons. Accordingly, the decision in Civil Case No. 02-0306
must be declared null and void.
The stricter rule in substituted service of summons was meant to address “[t]he
numerous claims of irregularities in substituted service which have spawned the
filing of a great number of unnecessary special civil actions of certiorari and appeals
to higher courts, resulting in prolonged litigation and wasteful legal expenses.” 32
Although the decision in Civil Case No. 02-0306 was promulgated as early as
December 11, 2002, the Court must strike
_______________
31  Bank of the Philippine Islands v. Evangelista, 441 Phil. 445, 453; 393 SCRA
187, 195 (2002).
32  Manotoc v. Court of Appeals, supra note 23.
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54 SUPREME COURT REPORTS ANNOTATED
Yuk Ling Ong vs. Co
it down for lack of jurisdiction over the person of petitioner. The favorable
judgment enjoyed by respondent cannot be categorized as a genuine victory because
it was fought against an adversary, who was ignorant of the existing dispute.
Whatever prize bestowed upon the victor in such a void decision must also be
undone. Respondent, if he wishes to pursue, must start from scratch and institute his
action for declaration of nullity again; this time with petitioner fully aware and ready
for litigation.
WHEREFORE, the petition is GRANTED. The June 27, 2012 Decision and the
March 26, 2013 Resolution of the Court of Appeals in C.A.G.R. S.P. No. 106271 are
72
hereby REVERSED and SET ASIDE. The December 11, 2002 Decision of the
Regional Trial Court, Branch 260, Parañaque City is hereby declared VOID.
SO ORDERED.
Carpio (Chairperson), Velasco, Jr.,** Del Castillo and Leonen, JJ., concur.
Petition granted, judgment and resolution reversed and set aside.
Notes.—The only grounds for annulment of judgment are extrinsic fraud and
lack of jurisdiction. (Republic vs. Technological Advocate for Agro-Forest Programs
Association, Inc. [TAFPA, INC.], 612 SCRA 76 [2010])
In a petition for annulment of judgment based on lack of jurisdiction, petitioner
must show not merely an abuse of jurisdictional discretion, but an absolute lack of
jurisdiction. (Id.)
——o0o——

[G.R. No. 92241. October 17, 1991.]

LILIA T. ONG, Petitioner, v. COURT OF APPEALS AND VIRGINIA

SARMIENTO, Respondents.

Diosdado P. Peralta for Petitioner.

Adelaido J. Rivera for Private Respondent.

SYLLABUS

1. REMEDIAL LAW; CIVIL PROCEDURE; APPEAL’ PERFECTION THEREOF,

DETERMINED BY THE EXPIRATION OF THE REGLEMENTARY PERIOD
THEREFOR. — Section 23 of the Interim Rules (implementing the 1981 Judiciary
Act, BP No. 129) promulgated on January 11, 1983, provides: brought about a
change in the procedure for appeal by dispensing with the appeal bond, as well as the
73
record on appeal (except in cases of multiple appeals). As a result, what determines
perfection of the appeal is the expiration of the reglementary period for appeal
(Universal Far East Corp. v. Court of Appeals, G.R. No. 6493l, August 31, 1984, 131
SCRA 642; and other cases)
2. ID.; ID.; ID.; FILING OF NOTICE THEREOF; DOES NOT DIVEST THE
TRIAL COURT OF ITS JURISDICTION. — The mere filing of appellant’s notice
of appeal does not divest the trial court of its jurisdiction over the case. The court
may still take cognizance of the other party’s motion for new trial under Rule 37, if
he should opt to file one, or, as in the instant case, a motion for execution pending
appeal, provided of course, such motions are filed within 15 days from said party’s
notice of the decision. What is crucial to determine is the timeliness of the filing of
the motion for execution pending appeal (Sonia Industries, Inc. v. Wasan, Sr., supra).
3. ID.; ID.; ID.; AUTHORITY TO DISAPPROVE THEREOF; LODGED WITH
THE APPELLATE COURT. — Where the reason given is that an appeal is frivolous
and dilatory, execution pending appeal cannot be justified. It is not proper for the
trial court to find that an appeal is frivolous and consequently to disapprove it since
the disallowance of an appeal by said court constitutes a deprivation of the right to
appeal. The authority to disapprove an appeal rightful pertains to the appellate court
(Heirs of Gavino Sabenal v. Hon. Benjamin Gorospe, G.R. No. 50168, September
30, 1988, 166 SCRA 145). Having declared that the trial judge may not rightfully
determine that an appeal from its own decision is frivolous or dilatory, it is clear that
the writ of execution pending appeal would be premised solely on the bond posted by
Sarmiento. The next question to be resolved then is whether or not the filing of a
bond, without anything more, can be considered a good reason to justify immediate
execution under Section 2 of Rule 39.
4. ID.; ID.; ID.; EXECUTION PENDING APPEAL; FILING OF SUFFICIENT
BOND; NOT A GOOD REASON FOR GRANTING THEREOF. — In the case of
Roxas v. Court of Appeals (157 SCRA 370), we clarified the doctrine as follows:
". . . to consider the mere posting of a bond a ‘good reason’ would precisely make
immediate execution of a judgment pending appeal routinary, the rule rather than the
exception. Judgments would be executed immediately, as a matter of cause, once
rendered, if all that the prevailing party needed to do was to post a bound to answer
for damages that might result therefrom. This is a situation, to repeat, neither
contemplated nor intended by law. "There are, to be sure, statements in some of this
Court’s decisions which do generate the perception that ‘the filing of the bond by the
successful party is a good reason for ordering execution. Petitioner Roxas herself
cites City of Manila v. C.A. to support her postulation of this effect. From that case
— which adverts to Hacienda Navarra, Inc. v. Labrador, Et. Al. (65 Phil. 531) and
People’s Bank and Trust Co., etc. v. San Jose, Et. Al. (96 Phil. 895) — she quotes
the following: ‘From what has been said, it is thus clear that the Court of Appeals
erred in not considering the city’s posting to a bond as [heirs of the estate of a
deceased person under administra] (sic) good and special reason to justify execution
pending appeal.’ "But sight should not be lost of the factual context in which the
quoted statement was made. In that case, the City of Manila had succeeded in
obtaining judgment for the recovery of a piece of land it had lent to the Metropolitan
Theater, and immediate execution became imperative because the theater was
insolvent and there was imminent danger of its creditor’s foreclosing a mortgage on
the property. This combination of circumstances was the dominant consideration
which impelled the grant of immediate execution, the requirement of a bond having
been imposed merely as an additional factor, no doubt for the protection of the
defendant’s creditor. In Hacienda Navarra, there was a special reason for immediate
execution in addition to the posting of a bond. There, the Court said that ‘Inasmuch
as the purpose in depositing the money is to insure its receipts by the party obtaining
a favorable judgment in the above cited civil case, the filing of a sufficient bond for
the delivery of said proceeds secures said receipt.’ And in People’s Bank, the order
involved in the case decreed payment of allowances for the support of one of the
heirs of the estate of a deceased person under administration and the urgent need of
the party entitled thereto was the paramount consideration for immediate execution,
not the filing of a bond."
DECISION
MEDIALDEA, J.:
This petition seeks to review on certiorari, the decision of the Court of Appeals,
upholding the writ of execution pending appeal issued by the trial judge.
The facts of the case are stated in the Court of Appeals decision.
Private respondent Virginia Sarmiento (Sarmiento) sued Eligio Dee (Dee) for the
collection of the amount of P121,759.00, representing the value of construction
materials allegedly obtained by him, for attorney’s fees and expenses of litigation.
Dee had earlier issued checks in the total amount of P40,000.00, but these
subsequently, bounced for insufficiency of funds. Sarmiento also prayed for the
issuance of a writ of preliminary attachment.
The complaint was subsequently amended to include petitioner Lilia Ong (Ong) as
party-defendant on the allegation that she and Eligio Dee had issued the checks and
that the construction materials were delivered to the piggery farm of Ong.
A writ of attachment was issued by the trial judge and served upon Ong, resulting in
the levy of certain hogs valued at P40,000.00. The court later issued a temporary
restraining order (TRO) against further enforcement of the writ, pending resolution
of a motion to quash filed by Ong.chanrobles.com.ph : virtual law library
On November 4, 1988, the trial judge rendered a decision, which was received by
Ong on November 29, 1988 (p. 91, Rollo) finding Dee and Ong jointly and severally
liable for the sum of P121,759.00.
74

Dee and Ong filed a notice of appeal on December 2, 1988.
On December 12, 1988, Sarmiento filed a "Motion for Immediate Execution Pending
Appeal," dated December 9, 1988, alleging that the appeal is dilatory and frivolous.
Ong opposed the motion claiming that the trial court no longer had any jurisdiction
to act on said motion since the appeal had clearly been perfected, and besides, there
was already a writ of attachment to secure the court’s judgment.
On January 26, 1989, the trial judge issued an order granting Sarmiento’s motion for
execution pending appeal, conditioned upon a bond in the amount of P121,759.00.
On February 2, 1989, Ong filed a petition for certiorari and prohibition with
injunction with the Court of Appeals. The appellate court dismissed it on October 18,
1989.
Hence this petition questioning the validity of the appellate court’s ruling upholding
the writ of execution pending appeal.
In upholding the writ of execution pending appeal, the appellate court observed that
the trial judge had, prior to its issuance, duly noted the presence of the circumstances
laid down by Section 2, Rule 39 of the Revised Rules of Court, allowing execution
as an exception, or pending appeal, even before final judgment;
viz:jgc:chanrobles.com.ph
"x       x       x
"a. . . . motion by the prevailing party with notice to the adverse party;
"b. . . . good reasons for issuing execution; and
"c. . . . the good reasons be stated in a Special Order (Lao v. Mencias, G.R No. L-
23554, November 25, 1967; 21 SCRA 1021) (See p. 92, Rollo, CA decision).
Likewise, it accepted as "good reasons" Sarmiento’s statements in support of her
motion, that "the appeal of said defendants is clearly and obviously frivolous and
dilatory in nature, considering that they have not adduced substantial valid and
meritorious defenses against the plaintiffs." (p. 92, Rollo, CA decision) The appellate
court also ruled that "the filing of the bond required by the court constitutes special
ground authorizing the court to issue writ of execution pending
appeal:jgc:chanrobles.com.ph
"x       x       x
". . . the determination of the sufficiency or insufficiency of the special reasons rests
upon the sound discretion of the court issuing the writ of execution pending appeal.
The appellate court cannot interfere with the exercise of this discretion unless it
appears that there had been a grave abuse or excess of authority in doing so
(Buenaventura v. Peña, 78 Phil. 795; Naredo v. Yatco, 80 Phil. 220) or conditions
have so far changed since the order was issued as to require the intervention of the
appella(te) court (Buenaventura v. Peña, supra). In the present case, this Court finds
no abuse of discretion nor a change of condition since the order was issued as to
require the intervention of this court (CA decision, pp. 87-94, Rollo, at p. 92).
The appellate court also disagreed with Ong’s claim that upon filing of her notice of
appeal, the trial court had lost jurisdiction to act on Sarmiento’s motion for execution
pending appeal, declaring that the mere filing of appellant’s notice of appeal does not
divest the trial court of jurisdiction over the case, since "an appeal is not perfected on
the date the notice of appeal was filed but on the expiration of the last day to appeal,"
citing the cases of Montelibano v. Bacolod-Murcia Milling Co., Inc., G.R. No.
69800, May 5, 1985, 136 SCRA 294 and Yabut v. IAC, G.R. No. 69208, May 28,
1986, 142 SCRA 124.chanrobles.com : virtual law library
Thus, the appellate court observed:jgc:chanrobles.com.ph
". . . when petitioner received a copy of the decision on November 29, 1988, an
appeal thereof was deemed perfected on December 14, 1988, the expiration of the
last day to appeal by any party. When the private respondent filed her motion for
execution pending appeal on December 12, 1988, it is very clear that the appeal was
not yet perfected. Considering then that the motion was filed well before the
perfection of the petitioner’s appeal, the respondent Court had jurisdiction to act on
the motion." (CA decision, p. 91, Rollo).
We agree with the Court of Appeals.
Section 23 of the Interim Rules (implementing the 1981 Judiciary Act, BP No. 129)
promulgated on January 11, 1983, provides:jgc:chanrobles.com.ph
"23. Perfection of Appeal. — In cases where appeal is taken the perfection of the
appeal shall be upon the expiration of the last day to appeal by any party."cralaw
virtua1aw library
The Interim Rules brought about a change in the procedure for appeal by dispensing
with the appeal bond, as well as the record on appeal (except in cases of multiple
appeals). As a result, what determines perfection of the appeal is the expiration of the
reglementary period for appeal (Universal Far East Corp. v. Court of Appeals, G.R.
No. 64931, August 31, 1984, 131 SCRA 642; Montelibano v. Bacolod-Murcia
Milling Co., Inc., supra; Yabut v. IAC, supra; Sonida Industries, Inc. v. Wasan, Sr.,
G.R. No. 76342, December 4, 1989, 179 SCRA 763.
75

The mere filing of appellant’s notice of appeal does not divest the trial court of its
jurisdiction over the case. The court may still take cognizance of the other party’s
motion for new trial under Rule 37, if he should opt to file one, or, as in the instant
case, a motion for execution pending appeal, provided of course, such motions are
filed within 15 days from said party’s notice of the decision. What is crucial to
determine is the timeliness of the filing of the motion for execution pending appeal
(Sonida Industries, Inc. v. Wasan, Sr., supra).
On the other hand, We do not agree that the writ of execution pending appeal was
premised on, or justified by good reasons, i.e. a) that the appeal was frivolous and
dilatory, and b) sufficient bond required by the court had been posted.
In the case of Roxas v. Court of Appeals (G.R. No. L-56960, January 28, 1988, 157
SCRA 370), We stated:jgc:chanrobles.com.ph
"Execution pending appeal in accordance with Section 2 of Rule 39 is, of course, the
exception. Normally, execution of a judgment should not be had until and unless it
has become final and executory — i.e., the right of appeal has been renounced or
waived, the period for appeal has lapsed without an appeal having been taken, or
appeal having been taken, the appeal has been resolved and the records of the case
have been returned to the court of origin — in which case, execution ‘shall issue as a
matter of right.’ (Sec. 1, Rule 39 in relation to Sec. 11, Rule 51).
"On the other hand, when the period of appeal has not expired, execution of the
judgment should not be allowed, save only if there be good reasons therefor, in the
court’s discretion.’As provided in Section 2, Rule 39 of the . . Rules . ., the existence
of good reasons is what confers discretionary power on a Court . . to issue a writ of
execution pending appeal. The reasons allowing execution must constitute superior
circumstances demanding urgency which will out weigh the injury or damages
should the losing party secure a reversal of the judgment.’ (Jaca v. Lumber Co., G.R.
No. L-25771, March 29, 1982; 113 SCRA 107, 121).chanrobles virtual lawlibrary
"It is not intended obviously that execution pending appeal shall issue as a matter of
course.’Good reasons, special, important, pressing reasons must exist to justify it;
otherwise, instead of an instrument of solicitude and justice, it may well become a
tool of oppression and inequity.’" (Emphasis ours)
Where the reason given is that an appeal is frivolous and dilatory, execution pending
appeal cannot be justified. It is not proper for the trial court to find that an appeal is
frivolous and consequently to disapprove it since the disallowance of an appeal by
said court constitutes a deprivation of the right to appeal. The authority to disapprove
an appeal rightfully pertains to the appellate court (Heirs of Gavino Sabenal v. Hon.
Benjamin Gorospe, G.R. No. 50168, September 30, 1988, 166 SCRA 145).
Having declared that the trial judge may not rightfully determine that an appeal from
its own decision is frivolous or dilatory, it is clear that the writ of execution pending
appeal would be premised solely on the bond posted by Sarmiento. The next question
to be resolved then is whether or not the filing of a bond, without anything more, can
be considered a good reason to justify immediate execution under Section 2 of Rule
39.
In the case of Roxas v. Court of Appeals, supra, We had occasion to address this
issue directly. We clarified the doctrine as follows:jgc:chanrobles.com.ph
". . . to consider the mere posting of a bond a ‘good reason’ would precisely make
immediate execution of a judgment pending appeal routinary, the rule rather than the
exception. Judgments would be executed immediately, as a matter of course, once
rendered, if all that the prevailing party needed to do was to post a bond to answer
for damages that might result therefrom. This is a situation, to repeat, neither
contemplated nor intended by law.
"There are, to be sure, statements in some of this Court’s decisions which do
generate the perception that ‘the filing of the bond by the successful party is a good
reason for ordering execution. Petitioner Roxas herself cites City of Manila v. C.A.
to support her postulation of this effect. From that case — which adverts to Hacienda
Navarra, Inc. v. Labrador, Et. Al. (65 Phil. 531) and People’s Bank and Trust Co. etc.
v. San Jose, Et. Al. (96 Phil. 895) — she quotes the following:chanrob1es virtual
1aw library
‘From what has been said, it is thus clear that the Court of Appeals erred in not
considering the city’s posting to a bond as [heirs of the estate of a deceased person
under administra] (sic) good and special reason to justify execution pending appeal.’
"But sight should not be lost of the factual context in which the quoted statement was
made. In that case, the City of Manila had succeeded in obtaining judgment for the
recovery of a piece of land it had lent to the Metropolitan Theater, and immediate
execution became imperative because the theater was insolvent and there was
imminent danger of its creditor’s foreclosing a mortgage on the property. This
combination of circumstances was the dominant consideration which impelled the
grant of immediate execution, the requirement of a bond having been imposed
merely as an additional factor, no doubt for the protection of the defendant’s creditor.
In Hacienda Navarra, there was a special reason for immediate execution, in addition
to the posting of a bond. There, the Court said that ‘Inasmuch as the purpose in
depositing the money is to insure its receipts by the party obtaining a favorable
judgment in the above cited civil case, the filing of a sufficient bond for the delivery
of said proceeds secures said receipt.’ And in People’s Bank, the order involved in
the case decreed payment of allowances for the support of one of the heirs of the
estate of a deceased person under administration, and the urgent need of the party
entitled thereto was the paramount consideration for immediate execution, not the
76
filing of a bond." (Emphasis ours)
Based on the foregoing discussions, We have no alternative but to strike down the
writ of execution pending appeal for lack of "good reasons" to justify its
issuance.chanrobles.com.ph : virtual law library
The other issues raised by Ong on her alleged solidary liability are not proper for
discussion in this petition for certiorari, being errors of judgment by the trial court,
correctible by appeal and which has been already undertaken by Ong.
ACCORDINGLY, the petition is GRANTED. The Order dated January 26, 1989
granting the issuance of a writ of execution pending appeal is hereby SET ASIDE
and NULLIFIED, having been issued in grave abuse of discretion. Costs against
private Respondent.
SO ORDERED.
G.R. No. 135128. August 26, 1999.*
BONIFACIO SANZ MACEDA, JR. and TERESITA MACEDA-DOCENA,
petitioners, vs. DEVELOPMENT BANK OF THE PHILIPPINES and the
COURT OF APPEALS, respondents.
Actions; Judgments; Appeals; Executions Pending Appeal; The rule on
execution pending appeal is strictly construed against the movant, for courts look
with disfavor upon any attempt to execute a judgment which has not acquired a final
character.—The execution of a judgment during the pendency of an appeal is
governed by Section 2, Rule 39 of the 1997 Rules of Court, which reads: x x x This
rule is strictly construed against the movant, for “courts look with disfavor upon any
attempt to execute a judgment which has not acquired a final character.” In the same
vein, the Court has held that such execution “is usually not favored because it affects
the rights of the parties which are yet to be ascertained on appeal.”
Same; Same; Same; Same; Requisites.—There are three requisites for the
grant of an execution of a judgment pending appeal: “a) there must be a motion by
the prevailing party with notice to the adverse party; b) there must be a good reason
for execution pending appeal; and c) the good reason must be stated in a special
order.” Underscoring the importance of the requisite “good reasons,” the Court ruled
in Ong v. Court of Appeals: “It is not intended obviously that execution pending
appeal shall issue as a matter of course. ‘Good reasons, special, important, pressing
reasons must exist to justify it; otherwise, instead of an instrument of solicitude and
justice, it may well become a tool of oppression and inequity.”
_________________
*
 THIRD DIVISION.
234
234  SUPREME COURT REPORTS ANNOTATED 
Maceda, Jr. vs. Development Bank of the Philippines
Same; Same; Same; Same; If the judgment is executed and, on appeal, the
same is reversed, although there are provisions for restitution, oftentimes damages
may arise which cannot be fully compensated.—The “compelling reason” given by
the trial court for allowing execution pending appeal is far outweighed by the injury
or damage that private respondent would suffer if it secures a reversal of the trial
court’s judgment. If the trial court is reversed on appeal, petitioners would be hard-
pressed to make a complete restitution to private respondent, to which they already
owe more than P5 million—the amount of their original loan plus accrued interests.
In any event, we agree with the Court of Appeals that there is no likelihood that
DBP, a government-owned and-controlled corporation, would fail to answer its
obligation if the trial court Decision is affirmed. As held in Valencia v. Court of
Appeals: “If the judgment is executed and, on appeal, the same is reversed, although
there are provisions for restitution, oftentimes damages may arise which cannot be
fully compensated. Accordingly, execution should be granted only when these
considerations are clearly outweighed by superior circumstances demanding urgency
and the provision contained in Rule 39, Section 2, requires a statement of these
circumstances as a security for their existence.”
Same; Same; Same; Same; Burden of Proof; The movant for execution
pending appeal has the burden of showing why the lower court’s Decision should be
executed without awaiting the result of the appeal.—Petitioners have failed to
present adequate reasons to show that the Court of Appeals committed reversible
errors in overturning the trial court’s Order. As movants, they have the burden of
showing why the lower court’s Decision should be executed without awaiting the
result of the appeal. Absent such justification, execution pending appeal cannot be
granted.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
     Eddie U. Tamondong for petitioners.
     Office of the Legal Counsel, DBP for private respondent. 
PANGANIBAN, J.:
Movants have the burden of showing why the trial court decision should be executed
without awaiting the result of the appeal. Absent such justification, its execution
pending appeal cannot be granted.
The Case
77
Before this Court is a Petition for Review on Certiorari  1 under Rule 45 of the Rules
of Court seeking the reversal of the August 14, 1998 Decision2 of the Court of
Appeals3 (CA) in CA-GR SP No. 47405, the dispositive portion of which reads:
WHEREFORE, based on the foregoing, the instant Petition is hereby
GRANTED. The challenged ORDER of respondent Court, dated October 2,
1997, is hereby ANNULLED and SET ASIDE insofar as it orders partial
execution pending appeal. No pronouncement as to costs.
The Order4 annulled by the CA was a modification by the trial court5 of the latter's
Decision6 dated February 25, 1997 in Civil Case No. 8737, Bonifacio Sanz Maceda
Jr. and Teresita Maceda-Docena v. Development Bank of the Philippines and Oscar
de Vera.
The Facts
The facts of the case as summarized by the Court of Appeals are as follows:
The case commenced on October 15, 1984, with the filing by [petitioners]7 of a
Complaint for Specific Performance with Damages against [private respondent] 8 and
one of its managers, Oscar De Vera. In their Complaint, [petitioners] alleged that
they were the owners of the old Gran Hotel in Tacloban City; that pursuant to their
plan to build a new Gran Hotel, they applied for an Eleven Million Pesos
(P11,000,000.00) loan with [private respondent], submitting to the latter a project
study of the new hotel, the Philippine Tourism Authority's approval of the project, as
well as the plans and specifications of the new Gran Hotel; that on July 28, 1976,
petitioner approved a loan of Seven Million Three Hundred Thousand Pesos
(P7,300,000.00) after setting the cost of the project at Ten Million Five Hundred
Thousand Pesos (P10,500,000.00); that [private respondent] required them to
produce Two Million Nine Hundred Thirty Thousand Pesos (P2,930,000.00) by way
of equity, to constitute a first mortgage on several parcels of land as well as on assets
they would acquire out of the proceeds of said loan, to sign a Promissory Note in the
amount of Seven Million Three Hundred Thousand Pesos (P7,300,000.00); that the
contract for the new Gran Hotel was awarded to Moreman Builders Co., which
demolished the old Gran Hotel and proceeded to build the new Gran Hotel; that
payment to said contractor was to be taken from the approved Seven Million Three
Hundred Thousand Pesos (P7,300,000.00) loan, on a progressive manner, based on
actual construction or work accomplishment; that they were required to advance, as
they did advance, to the contractor their required equity; that as of June 24, 1977,
they have advanced to the contractor the sum of One Million Two Hundred Sixty
Two Thousand Nine Hundred Ninety Eight Pesos and Thirty Eight Centavos
(P1,262,988.38); that [private respondent] had also released a total of One Million
Nine Hundred Eleven Thousand Three Hundred Sixty Pesos (P1,911,360.00), out of
their loan, to the contractor; that [private respondent], through its officer in charge of
the project, defendant Oscar De Vera, conspired with the contractor to enable the
latter to secure undue fund releases from their loan; that this was done by the
bloating of the value and percentage of construction work; that the contractor was
able to acquire sixty percent (60%) of the cost of the projected hotel even as its
actual accomplishment was only fifteen percent (15%); that [petitioners] were
compelled to file a Complaint for Rescission of Contract and Damages against the
contractor; that they also filed a complaint for Estafa against the contractor and
defendant Oscar De Vera; that [private respondent] and Oscar De Vera spread
negative information about them, thus influencing their suppliers to sue and
repossess the items they had supplied; that [private respondent] engaged in a series
of dilatory effects in the release of their loan funds until the period of their loan
availment lapsed; that [private respondent] has threatened to foreclose on the
mortgages they had executed for their loan; and that [private respondent's] acts
prevented them from completing the new Gran Hotel and from realizing profits
therefrom. [Petitioners] thus prayed (1) that [private respondent] be ordered to
release the balance of their approved loan, (2) that the interests and other charges
imposed on the loan be nullified, (3) that [private respondent] be made to pay them
(a) unrealized earnings and/or loss of income, (b) actual damages representing
additional costs or price increase in construction labor and materials, (c) moral
damages, (d) exemplary damages, (e) attorney's fees, litigation expenses and costs of
suit.1âwphi1.nêt
In their Answer to the Complaint, [private respondent] and Oscar De Vera averred
that releases on the loan of [petitioners] to the contractor were made through
[Petitioner] Bonifacio Maceda, Jr., that on account of the civil case filed by
[petitioners] against the contractor, [private respondent] was enjoined from making
any further releases on [petitioners'] loan; that while the trial court decided in favor
of [petitioners], still [private respondent] could not make any releases on their loan
considering the appeal filed by the contractor; that while said case was pending, at
least two suppliers filed cases against [petitioners] for non-payment of salaries/wages
and costs of suppliers; that said pending case also caused the construction of the
hotel project to stop and the period of the loan availment to lapse; that during the
negotiation for revival of the loan, [private respondent] requested [petitioners] to
submit new cost estimates and quotations inasmuch as the original cost estimates
prepared in 1976 were no longer sufficient to complete the project because of the
intervening price increases in labor and materials; that [petitioners] insisted that the
project be completed on the original cost estimates, with the project reduced to fifty
(50) instead of the original planned seventy five (75) rooms; that during several
conferences held between them, [private respondent] informed [petitioners] of the
terms and conditions for the resumption of their loan; that on July 18, 1979, it
authorized further releases on [petitioners'] loan; that said releases amounted to a
total of Five Million Three Hundred Forty Seven Thousand Five Hundred Ten Pesos
and Ninety Centavos (P5,347,510.90); that no further releases were thereafter made
in view of [petitioners'] failure to comply with the equity build up requirement; that
[petitioners] applied for an additional loan of Three Million Four Hundred Thousand
78
Pesos (P3,400,000.00); that on July 29, 1982, [private respondent] informed
[petitioners] that it had decided to reduce the approved loan amount to Five Million
Three Hundred Forty Seven Thousand Five Hundred Ten Pesos and Ninety Centavos
(P5,347,510.90), which was the amount of the total releases made on their original
loan amount; that notwithstanding said reduction of amount of the loan, [petitioners]
failed to make payments according to schedule; and that having agreed to all the
terms of their transactions, [petitioners] are estopped from questioning the conditions
of the loan as well as the releases thereof. After praying for dismissal of the
Complaint, [private respondent] and defendant Oscar De Vera counterclaimed for
P200,000.00 by way of attorney's fees and litigation expenses, P500,000.00 in moral
damages and costs of suit.
On February 25, 1997, [the trial] [c]ourt rendered a Decision in favor of [petitioners],
disposing of the case as follows —
WHEREFORE, in view of all the foregoing premises, the Court renders judgment, to
wit:
1. The preliminary injunction issued on December 12, 1984 is hereby made
permanent;
2. Defendant Development Bank of the Philippines is ordered, to wit:
a) To immediately release in favor of plaintiff Bonifacio Maceda,
Jr. the unreleased loan balance of P1,952,489.10. In addition, as to
the portion thereof amounting to P1.003M, DBP is further directed
to pay interest thereon at the rate of 12% per annum beginning and
counted from January 1978;
b) To immediately return to plaintiff Bonifacio Maceda, Jr. the
sum of P797,988.95 representing the interest/other charges for the
period October 31, 1979 to April 1, 1980;
c) To pay plaintiff Bonifacio Maceda, Jr. the sum of Five Hundred
Thousand Pesos as moral damages;
d) To pay plaintiff Bonifacio Maceda, Jr. the sum of One Hundred
Thousand Pesos as exemplary damages;
e) To pay plaintiff Bonifacio Maceda, Jr. the sum of
P17,547,510.90 representing the additional cost to complete and
finish the New Gran Hotel;
f) To pay plaintiff Bonifacio Maceda, Jr. the sum of P100,000.00
as attorney's fees and litigation expense.
The counterclaims of defendants are hereby ordered dismissed.
SO ORDERED.
[Private Respondent] filed a Notice of Appeal, while [petitioners] filed a Motion for
Reconsideration, seeking to increase the amount awarded to them by [the trial]
[c]ourt. They also filed a Motion for Execution Pending Appeal. [Private respondent]
filed its corresponding Opposition to the two Motions.
On October 2, 1997, [the trial] court issued its first questioned Order, (1) modifying
its Decision by increasing the amounts awarded to [Petitioner] Bonifacio Maceda, Jr.
and (2) granting the Motion for Execution Pending Appeal of two awards in its
Decision; namely, (a) the release of the loan balance of P1,952.489.10 as well as
payment of 12% interest p.a. on the amount of P1.003M, from January, 1978; and (b)
the payment of P17,547,510.90 representing the additional cost to finish the hotel
together with 6% interest thereon p.a. from 1987.
On November 5, 1997, [private respondent] filed its Notice of Appeal from the
February 25, 1997 Decision, as amended by the October 2, 1997 Order of [the trial]
[c]ourt. On the same date, it also filed a Motion for Reconsideration of the October 2,
1997 Order insofar as it grants execution pending appeal. Thereafter, or on March
26, 1998, it filed a Supplemental Motion for the approval of a supersedeas as bond in
the amount of P35M and to stay the execution pending appeal in the event that its
Motion for Reconsideration be denied.
On April 3, 1998, [the trial] [c]ourt denied its Motion for Reconsideration and
Supplemental Motion.
The Development Bank of the Philippines (DBP) appealed the trial court Decision to
the CA. Thereafter, it also filed with the appellate court a Petition
for Certiorari challenging the lower court's October 2, 1997 Order granting
execution of the said Decision pending appeal.
Ruling of the Court of Appeals
Ruling in favor of respondent bank, the CA concluded that there existed no sufficient
ground or compelling reason to allow the execution of the judgment pending appeal.
It held:
79
 There is nothing in the circumstances surrounding the case at bench which
is of an urgent nature. As may be gleaned from the records and as admitted
by private respondents, themselves, the project has reached 85%
completion. With private respondents' undenied "seven-figure assets and
capability to put in the required equity participation", We see no urgent
financial need on the part of private respondent. Then, too, with the
financial standing of private respondents and their assets, including the
hotel itself which they claim to have an appraised value of P16,632,129.40,
private respondents can very well obtain loans for the project from other
financial entities. On the other hand, considering that the amounts subject of
the execution pending appeal form only a small percentage of the amount it
would take to complete the project, We see no compelling reason to
prematurely order its release since it would have no substantial effect
anyway on the project. Moreover, measured against the injury or damage
which such execution would pose on petitioner should it secure a reversal of
the judgment, the reasons relied upon by respondent Court markedly pales
in comparison. After all where execution made pending appeal is
overturned, complete restitution is required.
xxx     xxx     xxx
All things considered, respondent Court should have approved the Thirty
Five Million (P35,000,000.00) supersedeas bond posted by petitioner. Said
amount can adequately assure performance of whatever judgment may be
awarded in favor of private respondents. Neither is there any danger that the
awards in favor of private respondents will not be answered or that justice
will be frustrated as petitioner is a government owned and controlled
financial institution with an authorized capital stock of Five Billion Pesos
(P5,000,000,000.00). With the stable and sound condition of petitioner,
immediate execution is not justified as there is no danger of the judgment
becoming illusory.9
Hence, this Petition.10
Issue
The solitary issue in this case is whether or not the Court of Appeals erred when it
reversed the October 2, 1997 Order of the trial court granting execution of the latter's
Decision pending appeal. More simply stated, are there good reasons to justify
execution of the trial court judgment pending appeal?
This Court's Ruling
The Petition is not meritorious.
Sole Issue:
Execution of Judgment Pending Appeal
The execution of a judgment during the pendency of an appeal is governed
by Section 2, Rule 39 of the 1997 Rules of Court,11 which reads:
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.
xxx     xxx     xxx
This rule is strictly construed against the movant, for "courts look with
disfavor upon any attempt to execute a judgment which has not acquired a
final character."12 In the same vein, the Court has held that such execution
"is usually not favored because it affects the rights of the parties which are
yet to be ascertained on appeal."13
There are three requisites for the grant of an execution of a judgment
pending appeal: "a) there must be a motion by the prevailing party with
notice to the adverse party; b) there must be a good reason for execution
pending appeal; and c) the good reason must be stated in a special
order."14 Underscoring the importance of the requisite "good reasons," the
Court ruled in Ong v. Court of Appeals:15
It is not intended obviously that execution pending appeal shall
issue as a matter of course. "Good reasons, special, important,
pressing reasons must exist to justify it; otherwise, instead of an
instrument of solicitude and justice, it may well become a tool of
oppression and inequity."16
80
Moreover, "the reasons allowing execution must constitute superior
circumstances demanding urgency which will outweigh the injury or
damages should the losing party secure a reversal of the judgment."17
In its Order dated October 2, 1997, the trial court ordered execution pending
appeal of the following awards:
(a) To immediately release in favor of the plaintiff Bonifacio
Maceda, Jr. the unreleased loan balance of P1,952,489.10. In
addition, as to the portion thereof amounting to P1.03M, DBP is
further directed to pay interest thereof at the rate of 12% per
annum beginning and counted from January 1978;
xxx     xxx     xxx
(e) To pay plaintiff Bonifacio Maceda Jr. the sum of
P17,547,510.90 representing the additional cost to complete and
finish the New Gran Hotel, plus six percent interest (6%) thereon
effective as of the year 1987 until finality.  18
In other words, the trial court, pending the appeal, ordered the immediate
release by the bank of (1) the unreleased amount of the loan agreement and
(2) the sum needed to complete the construction of the hotel, subject to the
filing of a bond of equivalent amount.
The "good reason" invoked by the trial court was the urgency resulting from
almost twenty years of delay and the yearly increase in costs that made the
completion of the hotel construction more difficult.
We are not convinced.
Good Reasons not Established
To repeat, an execution pending appeal is an extraordinary remedy, being
more of the exception rather than the rule. It is allowed only upon showing
of "good reasons" by the movant. In the present case, we find no
justification for the execution, pending appeal, of the awards of
P1,952,489.10 under disposition (a) and more than P17 million under
disposition (e).
There is no guarantee that petitioner can indeed complete the project, even
if the sum referred to in disposition (e) is immediately released. It must be
underscored that this was the amount needed to finish the project way back
in 1987 and was based on 1987 prices.
Equally unjustified is the release, pending appeal, of the remaining portion
of the loan in the amount of P1,952,489.10. As the trial court itself has held
in 1987, the award of more than P17 million under disposition (e) was the
amount needed to finish the project. Consequently, there was no urgent
need for the unreleased portion of the loan. The said amount was relatively
minuscule compared with that needed for the remainder of the hotel project
and would have little effect on its completion.
More important, the "compelling reason" given by the trial court for
allowing execution pending appeal is far outweighed by the injury or
damage that private respondent would suffer if it secures a reversal of the
trial court's judgment. If the trial court is reversed on appeal, petitioners
would be hard-pressed to make a complete restitution to private respondent,
to which they already owe more than P5 million — the amount of their
original loan plus accrued interests. In any event, we agree with the Court of
Appeals that there is no likelihood that DBP, a government-owned and
-controlled corporation, would fail to answer its obligation if the trial court
Decision is affirmed. As held in Valencia v. Court of Appeals:19
If the judgment is executed and, on appeal, the same is reversed,
although there are provisions for restitution, oftentimes damages
may arise which cannot be fully compensated. Accordingly,
execution should be granted only when these considerations are
clearly outweighed by superior circumstances demanding urgency
and the provision contained in Rule 39, Section 2, requires a
statement of these circumstances as a security for their existence.
Reasons Cited by Petitioners
In their Memorandum, petitioners passionately argue that DBP, as the lending bank,
has the obligation to deliver the full amount of the loan. They allege that the bank
"unilaterally reduced the amount of the approved loan and unilaterally terminated the
transaction."20 They also point out that the project has been delayed for 22 years, and
that the award of more than P17 million, with interest, for the completion of the hotel
"is less in value and purchasing power than the original estimate of P10.5 M had the
hotel been finished on its deadline in 1972."
These, however, involve issues that should be resolved in the appeal, not in these
proceedings. The respondent bank itself contends that it could not release the
remaining amount of the loan, because of the stipulation in the loan agreement that
such release is contingent on the amount of work accomplished. Thus, an order of
81
this Court releasing the balance of the loan, notwithstanding the bank's argument to
the contrary, would certainly be construed as a definitive judgment on the present
issue.
Petitioners' argument that the project has been delayed for twenty-two years is not
persuasive either. The release of the amount at this time is tantamount to a
pronouncement that respondent bank was responsible for the delay. Moreover,
petitioners are in effect taking the position that the undertaking of the bank was
meant to finance the complete construction of the hotel. The Court cannot at this
time declare that the bank was the cause of the delay, or that it was obliged to finance
the construction to its completion. To repeat, these questions pertain to the merits of
the case, which is on appeal. It must be stressed that the only issue in these
proceedings is whether there are "good reasons" to justify the execution of the
judgment pending appeal.
In sum, petitioners have failed to present adequate reasons to show that the Court of
Appeals committed reversible errors in overturning the trial court's Order. As
movants, they have the burden of showing why the lower court's Decision should be
executed without awaiting the result of the appeal. Absent such justification,
execution pending appeal cannot be granted.1âwphi1.nêt
WHEREFORE, the Petition is hereby DENIED. Costs against petitioner.
SO ORDERED.
G.R. No. 88114. December 20, 1990.*
PENTAGON SECURITY and INVESTIGATION AGENCY,
petitioner, vs. VICENTE T. JIMENEZ, ET AL., and NATIONAL LABOR
RELATIONS COMMISSION, SECOND DIVISION, respondents.
Civil Procedure; Execution; The "tools and implements" exempt from
execution refers to instruments of husbandry or manual labor needed by an artisan
craftsman or laborer to obtain his living; The exemption is personal and cannot be
claimed by a business enterprise with respect to its properties used in business.—
The term "tools and implements" refers to instruments of husbandry or manual labor
needed by an artisan craftsman or laborer to obtain his living. Here petitioner is a
business enterprise. It does not use the firearms personally, but they are used by its
employees. Not being a natural person, petitioner cannot claim that the firearms are
necessary for its livelihood. Private respondent invites the Court to take judicial
notice of the fact that there are security guards rendering service without firearms.
Petitioner without filing any reply moves for the resolution of the petition. There is
no question, in our mind, that a security agency without firearms to equip its guards
is useless. However, it 
_______________
*
 SECOND DIVISION.
493
VOL. 192, DECEMBER 20, 1990  493 
Pentagon Security and Investigation Agency vs. Jimenez
would appear that the exemption contemplated by the provision involved is
personal, available only to a natural person, such as a dentist's dental chair and
electric fan (Belen v. de Leon, G.R. No. L16412, 30 Nov. 1962). As pointed out by
the Solicitor General, if properties used in business are exempt from execution, there
can hardly be an instance when a judgment claim can be enforced against the
business entity.
PETITION to review the decision of the National Labor Relations Commission.
The facts are stated in the resolution of the Court.
     Danilo P. Capistrano for petitioner.
PADILLA, J.:
The issue raised by petitioner is whether there is grave abuse of discretion on the part
of the NLRC in upholding the sheriff's issuance of Notice of Levy and Sale on
Execution against licensed firearms owned and used by the petitioner, a security
agency, in its operations.
Petitioner, a single proprietorship engaged in security services, was ordered to pay
the amount of ONE HUNDRED FIFTY SEVEN THOUSAND ONE HUNDRED
NINETEEN PESOS AND FOUR CENTAVOS (P157,119.04) representing wages
and COLA differentials due its employees, as computed in a Decision of the NLRC
dated 21 February 1986. On 22 June 1988, a notice of garnishment was issued
against petitioner, addressed to the PC-SUSIA c/o Col. Norberto M. Lina, Camp
Crame, EDSA, Q.C. On 5 June 1988, Deputy Sheriff Silvino B. Santos issued a
Notice of Levy and Sale on Execution of Personal Properties against herein
petitioner, which personal properties are the licensed firearms in question.
82
Petitioner filed an urgent petition to quash Notice of Levy and Sale on Execution, business enterprise. It does not use the firearms personally, but they are used by its
claiming exemption from execution under Sec. 12, par. (b), Rule 39 of the Rules of employees. Not being a natural person, petitioner cannot claim that the firearms are
Court. necessary for its livelihood. Private respondent invites the Court to take judicial
notice of the fact that there are security guards rendering service without firearms.
Labor Arbiter Eduardo Magno denied the petition. The Motion for Reconsideration
was likewise denied. On 21 March 1989, the NLRC issued its resolution which is the Petitioner without filing any reply moves for the resolution of the petition.
subject of this petition.:-cralaw
There is no question, in our mind, that a security agency without firearms to equip its
The NLRC held: guards is useless.: rd
"Respondent is a security agency. It is admitted that the licensed firearm is However, it would appear that the exemption contemplated by the provision involved
an important implement used in the business but this licensed firearm is not is personal, available only to a natural person, such as a dentist's dental chair and
the tools and implements exempted from execution . crlaw . The question, electric fan (Belen v. de Leon, G.R. No. L-16412, 30 Nov. 1962). As pointed out by
therefore is whether a person can run his trade or employment without such the Solicitor General, if properties used in business are exempt from execution, there
licensed firearm. The answer is in the affirmative since the person can still can hardly be an instance when a judgment claim can be enforced against the
run the business or engage in his trade even without such firearm because business entity.
there are other alternatives open to him.
ACCORDINGLY, the petition is DISMISSED. However, for security reasons, and to
"Besides, there is no showing that the levied firearms are the only firearms prevent the possibility that the firearms to be sold at the execution sale may fall into
that the respondent-appellant has in its possession. We affirmatively believe the hands of lawless and subversive elements, the sale at public auction should be
therefore that there are firearms still hidden in its armory sufficient enough with the prior clearance and under supervision of the PC-INP authorities.
to answer the call of its security trade or business. In the remote assumption
SO ORDERED.
that no firearms remains in respondent's custody, as practically flowing
from the view of Labor Arbiter Magno, respondent can lease or buy from
legitimate sources. There (sic) are some of the alternatives which even
common layman can expediently comprehend."
The Solicitor General's as well as private respondent's comments submit that
firearms of a security agency are not exempt from execution under Rule 39, Sec. 12,
par. (b) of the Rules of Court which provides:
"Sec. 12. Property exempt from execution. — Except as otherwise expressly
provided by law, the following property, and no other, shall be exempt from
execution:
'(b) Tools and implements necessarily used by him in his trade or employment;'"
Respondents contend that from the above provision, three (3) things can be deduced,
viz:
"(a) Except in paragraphs (j) and (m), Sec. 12, Rule 39, Rules of Court, the
exemptions are accorded to individual debtors.
(b) The exempt properties are used personally by the debtor or his family, or as tools
or implements of the debtor in his trade or employment.
(c) The properties are necessary for the livelihood of the debtor and his family."
(Rollo, p. 58)
The term "tools and implements" refers to instruments of husbandry or manual labor
needed by an artisan craftsman or laborer to obtain his living. Here petitioner is a
83

G.R. No. 149053. March 7, 2007.
CENTRAL SURETY AND INSURANCE COMPANY,
petitioner, vs. PLANTERS PRODUCTS, INC., respondent.
Actions; Judgments; Execution by Motion; On meritorious grounds, execution
of final judgment by mere motion may be allowed even after the lapse of five years
when delay in the execution is caused or occasioned by the actions of the judgment
debtor and/or incurred for his benefit.—Under Rule 39, Section 6, the rule is that a
final judgment may be executed by mere motion within five years from the date of
entry of judgment. However, the rule is not absolute and admits one notable
exception and that is when the delay in enforcing the judgment is caused by the party
assailing the filing of the motion. In Republic v. Court of Appeals, 260 SCRA 344
(1996), we declared that, on meritorious grounds, execution of final judgment by
mere motion may be allowed even after the lapse of five years when delay in the
execution is caused or occasioned by the actions of the judgment debtor and/or is
incurred for his benefit. Similarly, in Camacho v. Court of Appeals, 287 SCRA 611
(1998), we ruled that the five-year period allowed for enforcement of judgment by
mere action is deemed effectively interrupted or suspended when the delay in the
execution is occasioned by the oppositor’s own initiatives in order to gain an undue
advantage.
Procedural Rules and Technicalities; While strict compliance to the rules of
procedure is desired, liberal interpretation is warranted in cases where a strict
enforcement of the rules will not serve the ends of justice.—
In Republic and Camacho, we ruled that the purpose of the law in prescribing time
limitations for enforcing a judgment or action is to prevent a party from sleeping on
his rights. Far from sleeping on its rights, respondent pursued its claim by
persistently seeking the execution of the RTC’s final judgment of November 6, 1991.
It would be unjust to frustrate respondent’s effort to collect payment from petitioner
on sheer technicality. While strict compliance to the rules of procedure is desired,
liberal interpretation is warranted in cases where a strict enforcement of the rules will
not serve the ends of justice.
_______________
*
 FIRST DIVISION.
652
652  SUPREME COURT REPORTS ANNOTATED 
Central Surety and Insurance Company vs. Planters Products, Inc.
PETITION for review on certiorari of the decision and resolution of the Court of
Appeals.
The facts are stated in the opinion of the Court.
     Roberto B. Arca for petitioner.
     Saludo, Agpalo, Fernandez and Aquino for respondent.
CORONA, J.:
This appeal on certiorari under Rule 45 of the Rules of Court hinges on a pure
question of law, that is, whether execution of judgment can be ordered by mere
motion despite the lapse of five years from entry of judgment.
The antecedent facts follow.
Sometime in 1977, Ernesto Olson entered into a dealership agreement with
respondent Planters Products, Inc. whereby he agreed to purchase, in cash or credit,
fertilizers and agricultural chemicals from respondent for resale. To secure Olson’s
faithful compliance of his obligations, Vista Surety and Insurance, Co. (Vista
Insurance) and petitioner executed a surety undertaking in favor of respondent.
After several deliveries, Olson failed to pay respondent prompting the latter to claim
the amount due from petitioner and Vista Insurance. However, both refused to settle
their liabilities to respondent as Olson’s sureties.
On June 25, 1979, respondent filed an action for collection of sum of money1 against
Olson, Vista Insurance and petitioner in the Regional Trial Court (RTC) of Makati,
Branch 58. Summons were accordingly served (except as to Olson whose address
could not be located).
In a decision2 dated November 6, 1991, the trial court found petitioner and Vista
Insurance liable to respondent. They were ordered to pay the following: (1) ₱372,502
84
representing the unpaid principal amount plus interest; (2) 25% of the total amount
recoverable as attorney’s fees and (3) cost of suit.
Petitioner alone appealed to the Court of Appeals (CA). On December 7, 1992, the
CA dismissed petitioner’s appeal for failure to pay the required docket fees. 3 On
March 12, 1993, the dismissal of petitioner’s appeal became final and executory;
entry of judgment followed on May 27, 1993.4
On October 12, 1993, respondent filed in the RTC a motion for execution of
judgment following the CA’s dismissal of petitioner’s appeal. 5 The RTC issued the
writ on October 21, 1993.6 The writ, however, was not implemented so respondent
filed an ex parte motion for the issuance of an alias writ of execution which the trial
court granted on February 24, 1994.
In the CA, petitioner filed a "Very Urgent Motion to Set Aside the CA Resolution of
December 7, 1992 and to Re-Open Appeal with Prayer for Preliminary
Injunction/Temporary Restraining Order." 7 On March 3, 1994, the appellate court
issued a resolution restraining the RTC judge and the deputy sheriff from enforcing
the writ but, on motion of respondent, the CA lifted the TRO and dismissed
petitioner’s urgent motion on March 24, 1994.8
Through a petition for certiorari under Rule 65 of the Rules of Court, petitioner
elevated the CA’s dismissal of its urgent motion to this Court. In its petition,
petitioner argued that it failed to pay the docket fees only because the CA’s judicial
records division did not "re-send" the notice for it to pay said fees. On July 11, 1994,
we dismissed the petition9 and this dismissal became final on September 14, 1994.10
On June 18, 1999 or 6 years from the entry of judgment of the RTC’s
decision,11 respondent filed another motion for issuance of alias writ of execution in
the trial court.12 On August 20, 1999, the trial court issued an order granting the writ.
Petitioner filed an MR of said order but the RTC denied it.
Petitioner thereafter went to the CA via a special civil action for certiorari under Rule
65 of the Rules ascribing grave abuse of discretion on the part of the RTC judge for
issuing the writ despite the fact that more than five years had elapsed since the
RTC’s decision of November 6, 1991 became final and executory. Invoking Rule 39,
Section 6 of the Rules, petitioner insisted that the RTC decision could no longer be
enforced by mere motion but only by court action.
The CA dismissed the petition for patent lack of merit.13 It held that:
While it is true that the judgment sought to be executed became final and executory
on March 12, 1993, it bears stressing that the delay was caused by petitioner’s
dilatory maneuvers filed in this Court and all the way to the Supreme Court, viz: the
Very Urgent Motion to Set Aside Resolution of December 7, 1992 and to Re-Open
the Appeal with Prayer for Preliminary Injunction/Temporary Restraining Order
which resulted in the issuance of the Court of Appeals Resolution dated March 3,
1994 enjoining respondents from enforcing the subject decision; the Motion for
Reconsideration of [the] Court of Appeals Resolution dated March 24, 1994; and
Petition for Certiorari before the Supreme Court which was ultimately dismissed by
the High Court on July 11, 1994.
xxx xxx xxx
WHEREFORE, for patent lack of merit, the petition is DISMISSED pursuant to
Rule 65, [S]ec. 8[,] 2nd par.[,] Rules of Civil Procedure.
Petitioner filed an MR but this was likewise denied by the CA.14 Hence, this petition.
The only relevant issue for our resolution is whether the execution of a final
judgment may be made by mere motion despite the lapse of five years.
In this case, we answer in the affirmative.
Under Rule 39, Section 6,15 the rule is that a final judgment may be executed by mere
motion within five years from the date of entry of judgment. However, the rule is not
absolute and admits one notable exception and that is when the delay in enforcing the
judgment is caused by the party assailing the filing of the motion.
In Republic v. Court of Appeals,16 we declared that, on meritorious grounds,
execution of final judgment by mere motion may be allowed even after the lapse of
five years when delay in the execution is caused or occasioned by the actions of the
judgment debtor and/or is incurred for his benefit.
Similarly, in Camacho v. Court of Appeals,17 we ruled that the five-year period
allowed for enforcement of judgment by mere action is deemed effectively
interrupted or suspended when the delay in the execution is occasioned by the
oppositor’s own initiatives in order to gain an undue advantage.
Based on the attendant facts, the present case falls within the exception. Petitioner
triggered the series of delays in the execution of the RTC’s final decision by filing
numerous motions and appeals in the appellate courts, even causing the CA’s
issuance of the TRO enjoining the enforcement of said decision. It cannot now
debunk the filing of the motion just so it can delay once more the payment of its
obligation to respondent. It is obvious that petitioner is merely resorting to dilatory
maneuvers to skirt its legal obligation.
85
Lastly, in Republic and Camacho, we ruled that the purpose of the law in prescribing
time limitations for enforcing a judgment or action is to prevent a party from
sleeping on his rights. Far from sleeping on its rights, respondent pursued its claim
by persistently seeking the execution of the RTC’s final judgment of November 6,
1991. It would be unjust to frustrate respondent’s effort to collect payment from
petitioner on sheer technicality. While strict compliance to the rules of procedure is
desired, liberal interpretation is warranted in cases where a strict enforcement of the
rules will not serve the ends of justice.
WHEREFORE, the petition is hereby DENIED.
Triple costs against petitioner whose counsel is hereby warned of severe disciplinary
sanctions for any further attempt to delay the final disposition of this case.
SO ORDERED.
A.M. No. P-92-766. March 27, 1995.*
LOURDES SUMALJAG EVANGELISTA, complainant, vs. LUISA
PENSERGA, respondent.
Remedial Law; Civil Procedure; Execution; Remedies of a third person whose
property was seized by sheriff to answer for the obligation of a judgment debtor.—
This Court had occasion to rule on the remedies of a third person whose property
was seized by a sheriff to answer for the obligation of a judgment debtor. The third
party owner may invoke the supervisory power of the court which authorized such
execution. Upon due application by the third person and after summary hearing, the
court may command that the property be released from the mistaken levy and
restored to the rightful owner or possessor (Sy v. Discaya, 181 SCRA 382 [1990]). In
this particular instance, the said court can determine whether the sheriff has acted
rightly or wrongly in the performance of his duties in the execution of judgment. The
court cannot pass upon the question of title to the property with the character  Same; Same; Same; Courts; Sheriffs; It is well settled that the sheriff’s duty
_______________
*
 SECOND DIVISION.
703
VOL. 242, MARCH 27, 1995  703 
Evangelista vs. Penserga
of finality.
Same; Same; Same; The remedy of terceria as provided in Section 17, Rule 39
of the Rules of Court is done by serving on the officer making the levy an affidavit of
his title and a copy thereof upon the judgment creditor.—Another remedy which the
third person may avail of is the remedy known as terceria as provided in Section 17,
Rule 39 of the Rules of Court. This is done by serving on the officer making the levy
an affidavit of his title and a copy thereof upon the judgment creditor. According to
the said rule, the officer shall not be bound to keep the property, unless such
judgment creditor or his agent, on demand of the officer, indemnifies the officer
against such claim by a bond in a sum not greater than the value of the property
levied on. An action for damages may be later on brought against the sheriff.
Same; Same; Same; A person other than the judgment debtor who claims
ownership or right over levied properties is not precluded from taking legal
remedies to prosecute his claim.—The above mentioned remedies are without
prejudice to any proper action that a third-party claimant may deem suitable, to
vindicate his claim to the property. This proper action is distinct and separate from
that in which the judgment is being enforced (Ong v. Tating, 149 SCRA 265 [1987]).
Hence, a person other than the judgment debtor who claims ownership or right over
levied properties is not precluded from taking other legal remedies to prosecute his
claim (Consolidated Bank and Trust Corp. v. Court of Appeals, 193 SCRA 158
[1991]).
Courts; Sheriffs; Respondent acted without and in excess of her official duty
in securing such manner of payment from the judgment debtors.—Meanwhile,
respondent’s acceptance of the sum of P100.00 as initial payment and a promissory
note from the Aguirres in satisfaction of the money judgment is another matter
altogether. Respondent acted without and in excess of her official duty in securing
such manner of payment from the judgment debtors.
Civil Procedure; Execution; Satisfaction of Judgments; Procedure on
Execution of Final Judgment.—Under the law, respondent was only authorized to do
the following: oust the Aguirres from the subject property; place complainant in
possession thereof; satisfy back rentals out of the personal properties of the Aguirres,
and if personal properties could not be found, satisfy the money judgment out of the
real property of the Aguirres, as required by Sections 13 and 15 of Rule 39 of the
Rules of Court.
704
704  SUPREME COURT REPORTS ANNOTATED 
Evangelista vs. Penserga
in the execution of a writ issued by a court is purely ministerial.—It is well settled
that the sheriff’s duty in the execution of a writ issued by a court is purely
ministerial. As stated in the Manual for Clerks of Court, when a writ is placed in the
hands of a sheriff, it is his duty in the absence of instructions, to proceed with
reasonable celerity and promptness to execute it according to its mandate. He has no
discretion whether to execute it or not (Young v. Momblan, 205 SCRA 33 [1992]).
Same; Same; Same; Same; Same; Respondent’s duty was to implement the
Writ of Execution.—In the present case, respondent’s duty was to implement the
Writ of Execution. His claim that third persons happen to claim the subject property
does not justify his partial enforcement of the writ.
Same; Same; Same; Same; Same; Respondent failed to observe the proper
procedures laid down by the Rules on Execution of final judgments when the
property to be levied upon is claimed by third persons.—From the foregoing, it is
very clear that respondent failed to observe the proper procedures laid down by the
86
Rules on execution of final judgments when the property to be levied upon is
claimed by third persons. Instead, she opted to settle issues raised by the alleged third
persons/owners of the subject property which is beyond her power to do.
Courts; Sheriffs; As a sheriff, respondent is bound to discharge her duties with
prudence, caution and attention which careful men usually exercise in the
management of their affairs.—We remind respondent that the conduct and behavior
of everyone connected with an office charged with the dispensation of justice from
the presiding judge to the lowliest clerk should be circumscribed with the heavy
burden of responsibility (Villamayor v. Cruz, Jr., 227 SCRA 239 [1993]). They must
faithfully adhere to, hold inviolate and invigorate the oftstated principle that a public
office is a public trust; all public officers and employees must at all times be
accountable to the people, and perform their duties and responsibility with care and
diligence that the nature of those duties demands (Re: Judge Enrique T. Jocson, 227
SCRA 756 [1993]).
ADMINISTRATIVE MATTER in the Supreme Court. Refusal to Implement Writ of
Execution.
The facts are stated in the opinion of the Court.
     Laureano Suan for respondent.
BIDIN, J.:
Herein complainant was the plaintiff in Civil Case No. 2171 of the MTCC of Ormoc
City for unlawful detainer against defendant spouses Jose and Zoila Aguirre.
Judgment was rendered by the MTCC of Ormoc City in favor of complainant,
ordering the defendant spouses to vacate the subject property (a parcel of land
described as Lot 1326 with a house thereon) and to pay complainant the sum of
P8,120.00 in accrued rentals. On appeal, the decision of the MTCC was affirmed by
the RTC of Ormoc City. Thereafter, the trial court issued a writ of execution on April
28, 1992. The writ was implemented by herein respondent as Clerk of Court IV and
Ex-Oficio Sheriff of the MTCC of Ormoc City.
On April 30, 1992, the writ was returned by respondent, who stated in her return that
the writ was partially satisfied and that the defendants had already vacated the
subject house. In satisfaction of the money judgment, respondent accepted the sum
P100.00 and a promissory note from the defendants/judgment debtors promising to
pay P100.00 monthly until the entire amount of P8,120.00 is fully paid. Respondent
alleged that she accepted the sum of money and the promissory note from the
defendants because she found that none of the movables found in the house where
the defendants were staying belonged to them.
When respondent turned over the payment to the complainant, the latter objected to
the manner of implementation of the writ, alleging that the same was contrary to the
court's judgment, and maintaining that the defendants were still occupying the
subject property. Respondent explained that the defendant showed her documents
evidencing their granddaughter's title to and ownership of the house they were
occupying, as well as their son-in-law's ownership of the movables in the said house.
Complainant filed the instant administrative complaint against respondent for
unreasonably refusing to implement the writ of execution in Civil Case No. 2171
alleging among others that the documents referred to by respondent were already
considered by the court in the ejectment case.
In a resolution dated June 30, 1994, the Court referred the case for investigation,
report and recommendation to the Executive Judge Francisco H. Escano, Jr. of the
RTC of Ormoc City, Branch 12.
During the hearing and investigation of the case, a dispute arose as to whether the
property owned by complainant included that presently occupied by the Aguirres, the
judgment debtors. The parties consented to an ocular inspection of the premises in
dispute. Judge Escano appointed the Clerk of Court of the RTC to act as
Commissioner to conduct the ocular inspection and submit a report thereon.
The ocular inspection revealed that complainant's lot, Lot No. 1326, is alleged by her
to be facing the Agua Dulce Street and from there continues down to the edge of the
Malbasag River. The house of the Aguirres stands on an old abandoned river bed,
which respondent claims is public land. While not contesting complainant's claim
that the boundary of her property is the Malbasag River, respondent contends that
said boundary is only up to the Aguirres' house since the river flowed through and
over the land where the Aguirres' house now stands before it changed its course. No
one could say with certainty when the river changed its course and whether
complainant's lot covers the area down to the present location of the Malbasag River.
The Commissioner refrained from making a pronouncement in his report as to
whether the Aguirres' house is inside or outside the property of complainant. He
recommended that a surveyor be appointed at the expense of the parties to determine
whether the house the Aguirres were occupying at the time the writ was served is on
the land of complainant. This recommendation was not acted upon by Executive
Judge Escano. The latter in turn submitted a Report to this Court based on the
Commissioner's findings and the testimonies of the witnesses of both parties.
In his Report, Judge Escano pointed out that respondent misled the court in making it
appear in her return that the defendants had already vacated the house subject of the
decision when in fact defendants were still living in the same house standing on the
same lot but already renovated by defendant's daughter's common law husband,
Raymundo Codilla (Rollo, p. 120).
87
After a careful examination of the record, We find that no valid reasons exist to
warrant respondent's inability to implement the writ insofar as effecting the
ejectment of the Aguirres from the disputed house is concerned. Respondent should
have continued to implement the writ of execution despite the presence of an alleged
claim of a third person on the subject property pursuant to and as provided for in
Sections 13, 15 and 17 of Rule 39 of the Rules of Court.
This Court had occasion to rule on the remedies of a third person whose property
was seized by a sheriff to answer for the obligation of a judgment debtor. The third
party owner may invoke the supervisory power of the court which authorized such
execution. Upon due application by the third person and after summary hearing, the
court may command that the property be released from the mistaken levy and
restored to the rightful owner or possessor (Sy v. Discaya, 181 SCRA 382 [1990]). In
this particular instance, the said court can determine whether the sheriff has acted
rightly or wrongly in the performance of his duties in the execution of judgment. The
court cannot pass upon the question of title to the property with the character of
finality.
Another remedy which the third person may avail of is the remedy known as terceria
as provided in Section 17, Rule 39 of the Rules of Court. This is done by serving on
the officer making the levy an affidavit of his title and a copy thereof upon the
judgment creditor. According to the said rule, the officer shall not be bound to keep
the property, unless such judgment creditor or his agent, on demand of the officer,
indemnifies the officer against such claim by a bond in a sum not greater than the
value of the property levied on. An action for damages may be later on brought
against the sheriff.
The above mentioned remedies are without prejudice to any proper action that a
third-party claimant may deem suitable, to vindicate his claim to the property. This
proper action is distinct and separate from that in which the judgment is being
enforced (Ong v. Tating, 149 SCRA 265 [1987]). Hence, a person other than the
judgment debtor who claims ownership or right over levied properties is not
precluded from taking other legal remedies to prosecute his claim (Consolidated
Bank and Trust Corp. v. Court of Appeals, 193 SCRA 158 [1991]).
It did not help that the Aguirres succeeded in utilizing legal processes to have the
house they were living in titled in the name of their granddaughter, Jeveline Codilla,
and the lot on which it stood transferred to their son-in-law, Raymond Codilla. The
latter transfer was effected in March 2, 1992, after the RTC had already affirmed the
MTCC's decision in the ejectment case on February 10, 1992.
In its memorandum report dated July 8, 1994, the Office of the Court Administrator
noted that the declaration of the house on the abandoned river bed in the name of
Jeveline Codilla was made to make it appear that Jeveline was the one who built said
house. Likewise, the sale from Aguirre to Codilla was done in fraud of creditors.
Both the tax declaration of the house in Jeveline Codilla's name and the sale of Jose
Aguirre's land to Raymundo Codilla were designed to defeat any judgment rendered
against them to pay complainant back rentals up to 1987 (Memorandum, p. 4),
The Office of the Court Administrator further surmises that it is possible that
respondent aided and guided the Aguirres in their legal maneuverings so that the
judgment in complainant’s favor would be rendered ineffectual, but since there is no
solid evidence to back up this suspicion, it must remain as such, a mere suspicion.
Meanwhile, respondent's acceptance of the sum of P100.00 as initial payment and a
promissory note from the Aguirres in satisfaction of the money judgment is another
matter altogether. Respondent acted without and in excess of her official duty in
securing such manner of payment from the judgment debtors.
Under the law, respondent was only authorized to do the following: oust the Aguirres
from the subject property; place complainant in possession thereof; satisfy back
rentals out of the personal properties of the Aguirres, and if personal properties could
not be found, satisfy the money judgment out of the real property of the Aguirres, as
required by Sections 13 and 15 of Rule 39 of the Rules of Court.
Respondent failed to follow the procedure laid down by the Rules of Court on
execution of final judgment. She simply should have filed a return stating why she
could not execute the writ of execution instead of entering into the "compromise"
with the judgment debtors (the Aguirres), which she is not authorized to do.
Executive Judge Escano also found that respondent asked for and received P500.00
from Anita Sumaljag, complainant's niece, to cover expenses for the enforcement of
the writ but without rendering an accounting thereof after the execution. Respondent
admitted this fact and must also be found culpable for the said omission.
It is well settled that the sheriff’s duty in the erection of a writ issued by a court is
purely ministerial. As stated in the Manual for Clerks of Court, when a writ is placed
in the hands of a sheriff, it is his duty in the absence of instructions, to proceed with
reasonable celerity and promptness to execute it according to its mandate. He has no
discretion whether to execute it or not (Young v. Momblan, 205 SCRA 33 [1992]).
In the present case, respondent's duty was to implement the Writ of Execution. His
claim that third persons happen to claim the subject property does not justify his
partial enforcement of the writ.
From the foregoing, it is very clear that respondent failed to observe the proper
procedures laid down by the Rules on execution of final judgments when the
88
property to be levied upon is claimed by third persons. Instead, she opted to settle
issues raised by the alleged third persons/owners of the subject property which is
beyond her power to do.
We remind respondent that the conduct and behavior of everyone connected with an
office charged with the dispensation of justice from the presiding judge to the
lowliest clerk should be circumscribed with the heavy burden of responsibility
(Villamayor v. Cruz, Jr., 227 SCRA 239 [1993]). They must faithfully adhere to,
hold inviolate and invigorate the oft-stated principle that a public office is a public
trust; all public officers and employees must at all times be accountable to the
people, and perform their duties and responsibility with care and diligence that the
nature of those duties demands (Re: Judge Enrique T. Jocson, 227 SCRA 756
[1993]).
As a sheriff, respondent is bound to discharge her duties with prudence, caution and
attention which careful men usually exercise in the management of their affairs. The
sheriff, an officer of the court upon whom the execution of a final judgment depends
must be circumspect and proper in his behavior (Eduarle v. Ramos, A.M. P-94-1069,
November 9, 1994).
WHEREFORE, the Court finds respondent Ex-Officio Sheriff — Luisa Penserga
guilty of exceeding her authority in enforcing the writ of execution issued in Civil
Case No. 2171 and failing to render an accounting of the sum she received for
expenses in enforcing the said writ and hereby imposes upon her a FINE in the sum
of P5,000.00 with WARNING that commission of the same or similar acts or
omissions will be dealt with more severely.
SO ORDERED.
G.R. No. 156829. June 8, 2004.*
RAMON D. MONTENEGRO, petitioner, vs. MA. TERESA L.
MONTENEGRO, for herself and as the mother and natural guardian of the
minors, ANTONIO AMELO and ANA MARIA PIA ISABEL, both surnamed
“MONTENEGRO,” respondents.
Courts; Contempt; Words and Phrases; Contempt is defined as “disobedience
to the court by acting in opposition to its authority, justice and dignity.”—Contempt
of court involves the doing of an act, or the failure to do an act, in such a manner as
to create an affront to the court and the sovereign dignity with which it is clothed. It
is defined as “disobedience to the court by acting in opposition to its authority,
justice and dignity.” The power to punish contempt is inherent in all courts, because
it is essential to the preservation of order in judicial proceedings, and to the
enforcement of judgments, orders and mandates of the courts; and, consequently, to
the due administration of justice.
Same; Same; Same; The Rules of Court penalizes two types of contempt,
namely, direct contempt and indirect contempt.—The Rules of Court penalizes two
types of contempt, namely, direct contempt and indirect contempt. Direct contempt is
committed in the presence of or so near a court as to obstruct or interrupt the
proceedings before the same, and includes disrespect toward the court, offensive
personalities toward others, or refusal to be sworn or to answer as a witness, or to
subscribe an affidavit or deposition when lawfully required to do so. On the other
hand, Section 3 of Rule 71 of the Rules of Court enumerates particular acts which
constitute indirect contempt, thus: (a) Misbehavior of an officer of a court in the
performance of his official duties or in his official transactions; (b) Disobedience of
or resistance to a lawful writ, process, order, or judgment of a court, including the act
of a person who, after being dispossessed or ejected from any real property by the
judgment or process of any court of competent jurisdiction, enters or attempts or
induces another to enter into 
_______________
*
 FIRST DIVISION.
416
416  SUPREME COURT REPORTS ANNOTATED 
Montenegro vs. Montenegro
or upon such real property, for the purpose of executing acts of ownership or
possession, or in any manner disturbs the possession given to the person adjudged to
be entitled thereto; (c) Any abuse of or any unlawful interference with the processes
or proceedings of a court not constituting direct contempt under section 1 of this
Rule; (d) Any improper conduct tending, directly or indirectly, to impede, obstruct,
or degrade the administration of justice; (e) Assuming to be an attorney or an officer
of a court, and acting as such without authority; (f) Failure to obey a subpoena duly
served; (g) The rescue, or attempted rescue, of a person or property in the custody of
an officer by virtue of an order or process of a court held by him.
Same; Same; Same; Indirect contempt may either be initiated (1) motu
proprio by the court by issuing an order or any other formal charge requiring the
respondent to show cause why he should not be punished for contempt, or (2) by the
filing of a verified petition, complying with the requirements for filing initiatory
pleadings.—Indirect contempt may either be initiated (1) motu proprio by the court
by issuing an order or any other formal charge requiring the respondent to show
cause why he should not be punished for contempt, or (2) by the filing of a verified
petition, complying with the requirements for filing initiatory pleadings. In the
present case, the trial court initiated the proceedings for indirect contempt by issuing
two orders directing the petitioner to show cause why he should not be punished for
indirect contempt.
89
 Same; Same; Same; Contempt, whether direct or indirect, may be civil or
criminal depending on the nature and effect of the contemptuous act.—Contempt,
whether direct or indirect, may be civil or criminal depending on the nature and
effect of the contemptuous act. Criminal contempt is “conduct directed against the
authority and dignity of the court or a judge acting judicially; it is an act obstructing
the administration of justice which tends to bring the court into disrepute or
disrespect.” On the other hand, civil contempt is the failure to do something ordered
to be done by a court or a judge for the benefit of the opposing party therein and is
therefore, an offense against the party in whose behalf the violated order was made.
If the purpose is to punish, then it is criminal in nature; but if to compensate, then it
is civil.
Same; Same; Examination of Judgment Obligor; A party’s refusal to be
examined, without justifiable reason, constituted indirect contempt which is civil in
nature.—In the present case, the contemptuous act was the petitioner’s refusal to
attend a hearing for his examination as judgment obligor, upon motion by the
respondent Teresa. It must be pointed out that the purpose of Section 36 of Rule 39 is
to provide the judgment obligee a remedy in case where the judgment obligor
continues to fail to comply with its obligation under the judgment. Petitioner’s
refusal to be  418
417
VOL. 431, JUNE 8, 2004  417  Montenegro vs. Montenegro
Montenegro vs. Montenegro
examined, without justifiable reason, constituted indirect contempt which is
civil in nature.
Same; Same; Same; Section 36 of Rule 39 of the Rules of Court allows, as a
matter of right, the plaintiff who is a judgment obligee to examine the defendant as
judgment obligor, at any time after the return of the writ of execution is made.—
Neither can petitioner rely on the alleged irregularity in the trial court’s grant of the
motion to examine him as judgment obligor before he was able to file a reply or
comment. Section 36 of Rule 39 of the Rules of Court allows, as a matter of right,
the plaintiff who is a judgment obligee to examine the defendant as judgment
obligor, at any time after the return of the writ of execution is made. Section 36 reads
as follows: Sec. 36. Examination of judgment obligor when judgment unsatisfied.—
When the return of a writ of execution issued against property of a judgment obligor,
or any one of several obligors in the same judgment, shows that the judgment
remains unsatisfied, in whole or in part, the judgment obligee, at any time after such
return is made, shall be entitled to an order from the court which rendered the said
judgment, requiring such judgment obligor to appear and be examined concerning
his property and income before such court or before a commissioner appointed by it,
at a specified time and place; and proceedings may thereupon be had for the
application of the property and income of the judgment obligor towards the
satisfaction of the judgment. But no judgment obligor shall be so required to appear
before a court or commissioner outside the province or city in which such obligor
resides or is found. (Emphasis supplied) Thus, the trial court committed no abuse of
discretion in scheduling the examination of petitioner on 22 March 2002. On the
contrary, it acted with utmost judiciousness to avoid a miscarriage of justice because
petitioner was reported to be about to leave for Canada, a fact which petitioner did
not refute in his Manifestation of 19 March 2002.
Same; Same; The reason for indefinite incarceration in civil contempt
proceedings, in proper cases, is that it is remedial, preservative, or coercive in
nature—the punishment is imposed for the benefit of a complainant or a party to a
suit who has been injured, and its object is to compel performance of the orders or
decrees of the court, which the contemnor refuses to obey although able to do so.—
In the present case, the nature of the contemptuous acts committed are civil in nature.
Section 7 of Rule 71 of the Rules of Court provides for indefinite incarceration in
civil contempt proceedings to compel a party to comply with the order of the court.
This may be resorted to where the attendant circumstances are such that the
noncompliance with the court order is an utter disregard of the authority of the court
which has then no other recourse but to use its coercive power. It has been held that
“when a person or party is legally and validly required by a court to appear before it
for a certain purpose, when that requirement is disobeyed, the only remedy left for
the court is to use force to bring such 
418  SUPREME COURT REPORTS ANNOTATED 
person or party before it.” The reason for indefinite incarceration in civil
contempt proceedings, in proper cases, is that it is remedial, preservative, or coercive
in nature. The punishment is imposed for the benefit of a complainant or a party to a
suit who has been injured. Its object is to compel performance of the orders or
decrees of the court, which the contemnor refuses to obey although able to do so. In
effect, it is within the power of the person adjudged guilty of contempt to set himself
free.
Same; Same; Where the act ordered to be done has already been performed,
albeit belatedly, the penalty of imprisonment may no longer be imposed.—In the
present case, however, the act which the trial court ordered the petitioner to do has
already been performed, albeit belatedly and not without delay for an unreasonable
length of time. As such, the penalty of imprisonment may no longer be imposed
despite the fact that its non-implementation was due to petitioner’s absence in the
Philippines.
Same; Same; Insolvency; A judgment obligor’s claim of insolvency is negated
by his frequent travels to Canada—the Court takes judicial notice of the amount of
expenses which a travel outside the country, particularly to Canada, entails, much
more so when the person traveling to Canada is trying to establish himself in the
said country as an immigrant.—We are not unmindful of the nature of the judgment
from which the present controversy arose. Six years have elapsed from the time the
compromise agreement for the support of the children of petitioner and respondent
was executed. We take judicial notice of the amount of expenses which a travel
outside the country, particularly to Canada, entails, much more so when the person
90
traveling to Canada is trying to establish himself in the said country as an immigrant.
Petitioner’s claim for insolvency is negated by his frequent travels to Canada. We
thus exhort the parties, specifically the petitioner, to resort to all reasonable means to
fully satisfy the judgment for support based on the compromise agreement, for the
paramount interests of their minor children.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
     Roland G. Ravina for petitioner.
     Jesus V. Hinlo, Jr. for respondents.
DAVIDE, JR., C.J.:
In this petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, petitioner Ramon D. Montenegro seeks the reversal of the 8 November
2002 Order1 in Civil Case No. 94-8467 of the Regional Trial Court, Branch 41,
Bacolod City, holding him guilty of indirect contempt for his repeated failure to
appear at the scheduled hearings for his examination as judgment obligor and
imposing on him the penalty of three (3) months imprisonment and a fine of twenty
thousand pesos (₱20,000), and of the subsequent 3 January 2003 Order2denying his
motion for the reconsideration of the 8 November 2002 Order.  examination of petitioner as judgment obligor. The trial court gave her 30 days
On 14 June 1994, respondent Ma. Teresa V. Lizares-Montenegro (hereinafter,
respondent Teresa), for herself and as mother and guardian of her two minor children
Antonio Amelo and Ana Maria Pia Isabel, filed with the trial court below a
complaint for support against her husband, herein petitioner Ramon D. Montenegro.
The case was docketed as Civil Case No. 94-8467. Four years after the filing of the
complaint, petitioner and respondent Teresa executed a compromise agreement
which was submitted to the trial court for approval on 13 October 1998. On the same
date, the trial court rendered a Decision approving the compromise agreement and
ordering the parties to comply with it. The parties did not appeal from the Decision;
hence, it became final and executory.
Under the terms of the compromise agreement, petitioner obligated himself to:
(1) Pay the respondent the amount of One Million Pesos (₱1,000,000)
representing her entire share in their conjugal partnership of gains, Five
Hundred Thousand (₱500,000) of which is payable upon signing of the
compromise agreement while the remaining balance of Five Hundred
Thousand (₱500,000) must be paid within one (1) year from the execution
of the compromise agreement.
(2) Establish a trust fund in the amount of Three Million Pesos (₱3,000,000)
in favor of his children Antonio Amelo and Ana Maria Pia Isabel within
sixty (60) days from the approval of the compromise agreement.
(3) Obtain an educational plan or an investment plan to cover tuition and
other matriculation fees for the college education of Ana Maria Pia Isabel
within one (1) year from the approval of the compromise agreement.
Since petitioner failed to comply with his obligations under the compromise
agreement despite the lapse of the periods provided therein, respondent Teresa filed a
motion for the execution of the judgment. The trial court granted the motion and
issued a writ of execution on 15 February 1999. 
A second writ of execution and a notice of garnishment, issued by the trial court on
21 May 2001 and and a notice of garnishment issued on 28 May 2001 weon 28 May
2001, respectively, were returned unsatisfied.
In several conferences3 called by the trial court, petitioner admitted his failure to
comply with his obligations under the compromise agreement but alleged that he was
no longer in a position to do so as he was already insolvent. In the conference held
on 6 March 2002, respondent Teresa manifested that she would file a motion for
within which to file the appropriate motion and informed petitioner that he would
have 30 days to file a comment or reply to the motion.
On 14 March 2002, respondent Teresa filed a motion to examine petitioner as
judgment obligor under Sections 36 and 38 of Rule 39 of the Rules of Court. In her
motion, she alleged that there is an urgency for the examination to be conducted at
the earliest time since petitioner was about to migrate to Canada. Acting on the said
motion, the trial court issued on 19 March 2002 an Order granting the motion for
examination of petitioner as judgment obligor and setting his examination on 22
March 2002. On the same day the motion for examination was granted, petitioner
filed with the court a Manifestation alleging that the grant of the motion for
examination iwas premature because he still would have 30 days from receipt of the
motion, or until April 14, 2002, within which to file a comment or opposition thereto
as agreed upon during the conference on 6 March 2002.
Thus, oOn 22 March 2002, neither petitioner nor his counsel appeared for the
scheduled hearing. On that date, the trial court issued an order re-scheduling the
hearing to 10 April 2002 and requiring the petitioner to explain why he should not be
held in contempt of court for disobeying the 19 March 2002 Order. 
91
On 26 March 2002, petitioner filed a Compliance with Motion to Re-schedule
Proceedings. He explained that he did not attend the 22 March 2002 hearing because
he was under the impression that he still had 30 days from the filing of the motion to
examine him as judgment obligor within which to respond to the motion; besides, his
counsel was not available on 22 March 2002 due to previously scheduled hearings.  the trial court to issue an order citing him in contempt of court.
At the hearing on 4 April 2002 of the Compliance with Motion to Re-schedule
Proceedings, counsel for petitioner manifested that his client already left for Canada
on 26 March 2002 and will be unable to attend the 10 April 2002 hearing, and that
petitioner would be available for examination on the last week of July or first week
of August 2002. Counsel prayed that the hearing be thus reset accordingly. The trial
court denied the motion and informed the parties that the hearing scheduled on 10
April 2002 will proceed as scheduled.
On 5 April 2002, petitioner filed a manifestation reiterating that he would be unable
to attend the 10 April 2002 hearing because he was already in Canada. Counsel for
petitioner likewise manifested that he would also be unavailable on the said date
because he would be in Manila to attend to his other cases.
On 17 June 2002, the trial court issued an Order directing the petitioner to show
cause why he should not held in contempt of court for failure to appear on the 10
April 2002 at the hearing for his examination as judgment obligor. In his Compliance
and Explanation filed on 28 June 2002, petitioner alleged that he was unable to
attend the 10 April 2002 hearing because he was in Canada and had no intention to
abscond from his obligation.
On 13 June 2002, the trial court issued an Order setting the case for the hearing for
examination of the petitioner on 3 July 2002. A subpoena was issued against the
petitioner and served at his address of record. Respondent Teresa also caused the
service of the subpoena at 8051 Estrella Avenue, San Antonio Village, Makati City
where petitioner is allegedly residing.
The 3 July 2002 hearing did not push through as the petitioner filed a Motion to
Quash Subpoena Ad Testificandum4on 28 June 2002. In the motion, petitioner
admitted that 8051 Estrella Avenue, San Antonio Village, Makati City, is his present
address but alleged that Makati City is more than 100 kilometers away from Bacolod
City; thus, he may not be compelled by subpoena to attend the 3 July 2002 hearing in
Bacolod City. In this motion, petitioner did not allege that he was still in Canada.
In its Order of 2 September 2002, the trial court denied the Motion to Quash
Subpoena Ad Testificandum, but re-scheduled the hearing to 23 October 2002. On 22
October 2002, the day before the scheduled hearing, petitioner filed a manifestation
manifestation informing the trial court that he was still in Canada and would not be
able to attend the 23 October 2002 hearing; however, he would be in Manila on the
first week of December 2002. He moved that the hearing be re-scheduled on 9
December 2002. The manifestation, however, did not contain a notice of hearing.
On 23 October 2002, petitioner did not appear at the scheduled hearing, prompting
 
In its Order of 8 November 2002, the trial court declared petitioner in contempt of
court under Section 38 of Rule 39 of the Rules of Court5 and imposed on him the
penalty of imprisonment for three months and ordered him to pay a fine of ₱20,000.
His motion for reconsideration of the Order having been denied by the trial court in
its Order of 3 January 2003, petitioner filed the petition in the case at bar. 
The petition raises pure questions of law. After the issues were joined, we resolved to
give due course to the petition. 
Having raised only questions of law, petitioner is bound by the trial court’s findings
of fact. 
The core issue to be determined is whether, based on the facts found by the trial
court, the latter erred in holding the petitioner guilty of indirect contempt for
willfully disobeying the orders of the trial court requiring him to appear for purposes
of examination as a judgment obligor at in the hearings scheduled on 22 March 2002,
10 April 2002, and 23 October 2002.
We rule in the negative.
The totality of petitioner’s acts clearly indicated a deliberate, and unjustified refusal
to be examined as a judgment obligor at the time the examination was scheduled for
hearing by the trial court. His Such acts tended to degrade the authority and respect
for court processes and impaired the judiciary’s duty to deliver and administer
justice. Petitioner tried to impose his will on the trial court.
Contempt of court involves the doing of an act, or the failure to do an act, in such a
manner as to create an affront to the court and the sovereign dignity with which it is
clothed.6 It is defined as "disobedience to the court by acting in opposition to its
authority, justice and dignity."7 The power to punish contempt is inherent in all
courts, because it is essential to the preservation of order in judicial proceedings, and
to the enforcement of judgments, orders and mandates of the courts; and,
consequently, to the due administration of justice.8
The Rules of Court penalizes two types of contempt, namely, direct contempt and
indirect contempt. Direct contempt is committed in the presence of or so near a court
as to obstruct or interrupt the proceedings before the same, and includes disrespect
92
toward the court, offensive personalities toward others, or refusal to be sworn or to
answer as a witness, or to subscribe an affidavit or deposition when lawfully required
to do so.9
On the other hand, Section 3 of Rule 71 of the Rules of Court enumerates particular
acts which constitute indirect contempt, thus:
(a) Misbehavior of an officer of a court in the performance of his official
duties or in his official transactions;
(b) Disobedience of or resistance to a lawful writ, process, order, or
judgment of a court, including the act of a person who, after being
dispossessed or ejected from any real property by the judgment or process
of any court of competent jurisdiction, enters or attempts or induces another
to enter into or upon such real property, for the purpose of executing acts of
ownership or possession, or in any manner disturbs the possession given to
the person adjudged to be entitled thereto;
(c) Any abuse of or any unlawful interference with the processes or
proceedings of a court not constituting direct contempt under section 1 of
this Rule;
(d) Any improper conduct tending, directly or indirectly, to impede,
obstruct, or degrade the administration of justice;
(e) Assuming to be an attorney or an officer of a court, and acting as such
without authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a person or property in the custody
of an officer by virtue of an order or process of a court held by him.
In relation to the foregoing, Section 38 of Rule 39 of the Rules of Court also
provides that "a party or other person may be compelled, by an order or subpoena, to
attend before the court or commissioner to testify as provided in the two preceding
sections, and upon failure to obey such order or subpoena or to be sworn, or to
answer as a witness or to subscribe his deposition, may be punished for contempt as
in other cases." This provision relates specifically to Section 3(b) of Rule 71 of the
Rules of Court.
Indirect contempt may either be initiated (1) motu proprio by the court by issuing an
order or any other formal charge requiring the respondent to show cause why he
should not be punished for contempt or (2) by the filing of a verified petition,
complying with the requirements for filing initiatory pleadings. 10 In the present case,
the trial court initiated the proceedings for indirect contempt by issuing two
orders11 directing the petitioner to show cause why he should not be punished for
indirect contempt. 
Contempt, whether direct or indirect, may be civil or criminal depending on the
nature and effect of the contemptuous act. Criminal contempt is "conduct directed
against the authority and dignity of the court or a judge acting judicially; it is an act
obstructing the administration of justice which tends to bring the court into disrepute
or disrespect."12 On the other hand, civil contempt is the failure to do something
ordered to be done by a court or a judge for the benefit of the opposing party therein
and is therefore, an offense against the party in whose behalf the violated order was
made.13 If the purpose is to punish, then it is criminal in nature; but if to compensate,
then it is civil.14
In the present case, the contemptuous act was the petitioner’s refusal to attend a
hearing for his examination as judgment obligor, upon motion by the respondent
Teresa. It must be pointed out that the purpose of Section 36 of Rule 39 is to provide
the judgment obligee a remedy in case where the judgment obligor continues to fail
to comply with its obligation under the judgment. Petitioner’s refusal to be
examined, without justifiable reason, constituted indirect contempt which is civil in
nature. 
Petitioner’s deliberate willfulness and even malice in disobeying the orders of the
trial court are clearly shown in the pleadings he himself had filed before the trial
court. 
In his Manifestation of 19 March 2002 petitioner insisted on his right to file a reply
or comment on the Motion to Examine Defendant as Judgment Obligor until 14
April 2002 solely on the basis of the purported agreement at the conference on 6
March 2002. Petitioner merely brushed aside the Order of the trial court requiring
him to appear on 22 March 2002 for the hearing by not appearing in court. Petitioner
cannot simply assume that his manifestation would suffice for the trial court to re-
schedule the 22 March 2002 hearing. That portion of the manifestation filed by
petitioner on 19 March 2002, which reads:
3. In the meantime, we have no other option but to cancel the setting on
March 22, 2002 until Respondent shall have submitted his Reply/Comment
and the issue is finally laid to rest by the issuance of a final Order for that
purpose.
demonstrates beyond doubt arrogance, haughtiness and disrespect. While petitioner
apparently disagrees with the 19 March 2002 Order of by the trial court, he did not
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file a motion for its reconsideration. Neither did he file a motion to reset the
scheduled hearing on 22 March 2002. We have ruled that a motion for continuance
or postponement is not a matter of right but is addressed to the sound discretion of
the court.15 Petitioner sought to deprive the trial court of the discretion; he took it
upon himself to cancel or to order the court to cancel the 22 March 2002 scheduled
hearing.  in Canada at the time of the scheduled hearing. Nonetheless, it must be stressed that
Petitioner makes a belated claim in the present petition that his failure to attend the
22 March 2002 hearing was due to the fact that he was already on his way to Manila
on 22 March 2002 in preparation for his 26 March 2002 trip to Canada. However,
such explanation was not stated in the 19 March 2002 Manifestation and 5 April
2002 Compliance and Motion to Re-schedule Proceedings. The explanation is either
a delayed afterthought or an unguarded confession of a deliberate plan to delay or
even avoid his examination as a judgment obligor.  before the scheduled hearing, informing the court that he will be unable to attend the
Neither can petitioner rely on the alleged irregularity in the trial court’s grant of the
motion to examine him as judgment obligor before he was able to file a reply or
comment. Section 36 of, Rule 39 of the Rules of Court allows, as a matter of right,
the plaintiff who is a judgment obligee to examine the defendant as judgment
obligor, at any time after the return of the writ of execution is made. Section 36 reads
as follows:
Sec. 36. Examination of judgment obligor when judgment unsatisfied. —
When the return of a writ of execution issued against property of a
judgment obligor, or any one of several obligors in the same judgment,
shows that the judgment remains unsatisfied, in whole or in part, the
judgment obligee, at any time after such return is made, shall be entitled
to an order from the court which rendered the said judgment, requiring
such judgment obligor to appear and be examined concerning his property
and income before such court or before a commissioner appointed by it, at a
specified time and place; and proceedings may thereupon be had for the
application of the property and income of the judgment obligor towards the
satisfaction of the judgment. But no judgment obligor shall be so required to
appear before a court or commissioner outside the province or city in which
such obligor resides or is found. (Emphasis supplied)
Thus, the trial court committed no abuse of discretion in scheduling the examination
of petitioner on 22 March 2002. On the contrary, it acted with utmost judiciousness
to avoid a miscarriage of justice because petitioner was reported to be about to leave
for Canada, a fact which petitioner did not refute in his Manifestation of 19 March
2002.  the court is to use force to bring such person or party before it."17
It is noteworthy that while petitioner insisted that he still had until 14 April 2002 to
file a reply or comment on the motion for examination, he also manifested through
counsel on 5 April 2002 that he already left for Canada on 26 March 2002 and will
not be back until the last week of July or the first week of August 2002. It is obvious
then that petitioner wanted to gain time to avoid being examined. 
With respect to the 10 April 2002 hearing, it is established that petitioner was already
the re-scheduling of the hearing to 10 April 2002 was brought about by his
unjustifiable failure to attend the 22 March 2002 hearing. 
Subsequently, despite petitioner’s 19 March 2002 and 5 April 2002 manifestations
that he would return to the Philippines sometime during the last week of July or first
week of August 2002, petitioner did not attend the 23 October 2002 hearing. Again,
instead of filing a motion to reset the hearing, petitioner filed a manifestation the day
hearing and suggesting the hearing to be reset to 9 December 2002. Such
manifestation to re-schedule the 23 October 2002 hearing was, for all intents and
purposes, a motion to postpone the hearing , but the pleading did not contain a notice
of hearing. 
It is of no moment that petitioner was eventually examined as judgment obligor on
17 December 2002, nine (9) months after the original setting. His subsequent
appearance at the hearing did not wipe out his contemptuous conduct.
We shall now take up the penalties imposed by the trial court.
Under Section 7 of Rule 71 of the Rules of Court, a person found guilty of contempt
of court against a Regional Trial Court may be punished with a fine not exceeding
thirty thousand pesos or imprisonment not exceeding six (6) months, or both. The
penalties ofor imprisonment for three months and a fine of twenty thousand pesos are
within the allowable penalties the trial court itit may impose. However, the penalties
of imprisonment and fine may be imposed one at a time, or together. 
In the present case, the nature of the contemptuous acts committed are civil in nature.
Section 7 of Rule 71 of the Rules of Court provides for indefinite incarceration in
civil contempt proceedings to compel a party to comply with the order of the court.
This may be resorted to where the attendant circumstances are such that the non-
compliance with the court order is an utter disregard of the authority of the court
which has then no other recourse but to use its coercive power.16 It has been held that
"when a person or party is legally and validly required by a court to appear before it
for a certain purpose, when that requirement is disobeyed, the only remedy left for
The reason for indefinite incarceration in civil contempt proceedings, in proper
cases, is that it is remedial, preservative, or coercive in nature. The punishment is
94
imposed for the benefit of a complainant or a party to a suit who has been injured. Its
object is to compel performance of the orders or decrees of the court, which the
contemnor refuses to obey although able to do so.18 In effect, it is within the power of
the person adjudged guilty of contempt to set himself free.  HERMINIO I. BENITO, Presiding Judge of Branch 132 of the RTC of Makati,
In the present case, however, the act which the trial court ordered the petitioner to do
has already been performed, albeit belatedly and not without delay for an
unreasonable length of time. As such, the penalty of imprisonment may no longer be
imposed despite the fact that its non-implementation was due to petitioner’s absence
in the Philippines.  identity of parties, subject matter, and causes of action.
We are not unmindful of the nature of the judgment from which the present
controversy arose. Six years have elapsed from the time the compromise agreement
for the support of the children of petitioner and respondent was executed. We take
judicial notice of the amount of expenses which a travel outside the country,
particularly to Canada, entails, much more so when the person traveling to Canada is
trying to establish himself in the said country as an immigrant. Petitioner’s claim for
insolvency is negated by his frequent travels to Canada. We thus exhort the parties,
specifically the petitioner, to resort to all reasonable means to fully satisfy the
judgment for support based on the compromise agreement, for the paramount
interests of their minor children.  property after the parties originally fixed it in their compromise agreement.
WHEREFORE, the petition is hereby PARTIALLY GRANTED. The 8 November
2002 Order of the Regional Trial Court, Branch 41, Bacolod City in with Civil Case
No. 94-8467 is modified. As modified, the penalty of for imprisonment is deleted
therefrom, while the penalty of fine of ₱20,000 is affirmed.
No costs.
SO ORDERED.
G.R. No. 110401. August 23, 1995.*
EDGARDO GUEVARA AND LOURDES GUEVARA, petitioners,vs. HON.
and FAR EAST BANK & TRUST CO., respondents.
Actions; Judgments; Res Judicata; Elements of Res Judicata.—For a
judgment to constitute a bar to a subsequent case (1) it must be a final judgment; (2)
the court which rendered it must have jurisdiction over the subject matter and the
parties; (3) it must be on the merits; and (4) there must be between the two cases
Same; Same; Same; There is no identity of the subject matter where the first
case was about the resale to petitioners of the property which the bank had acquired
through foreclosure sale whereas the second case concerns the rescheduling of
payment of the property after the parties originally fixed it in their compromise
agreement.—All elements of res judicata, except the last, are present here. For while
there is an identity of parties, there is none as to subject matter and cause of action
between Civil Case No. 87-4140 and Civil Case No. 92-2818. The subject matter of
the first case (Civil Case No. 87-4140) was the resale to petitioners of the property
which the bank had acquired through foreclosure sale, whereas the subject matter of
the second case (Civil Case No. 92-2818), is the rescheduling of payment of the
Same; Same; Same; The causes of action cannot be the same if the cause of
action in one case only arose after the judgment in the other.—Nor are the causes of
action in the two cases the same, so much so that the same evidence would not
support both of them, which is the test of the identity of causes of action. Indeed the
causes of action cannot be the same for the reason that, if true, the cause of action in
the complaint in Civil Case No. 92-2818 only arose after the judgment in Civil Case
No. 87-4140.
Same; Same; Same; The principle of res judicata extends only to the facts and
conditions as they existed at the time the judgment was rendered.—The principle of
res judicata does not apply, since it extends 
_______________
*
 SECOND DIVISION.
571
VOL. 247, AUGUST 23, 1995  571 
Guevara vs. Benito
only to the facts and conditions as they existed at the time the judgment was
rendered. (Caiña v. Court of Appeals, 239 SCRA 252 (1994) Petitioners’ claim is
that private respondent agreed to waive in their favor the time clause in the Deed of
Conditional Sale starting with the installment which became due on May 4, 1992.
They are thus alleging facts which did not occur until after the judgment by
compromise had been rendered in Civil Case No. 87-4140 on March 30, 1992.
95
 Same; Same; Same; Compromise Agreements; A compromise agreement
cannot cover any cause of action that might arise after the making of the agreement
and that any cause of action which may arise from the application or violation of the
compromise agreement is not barred by what was settled in the prior case.—This
case is governed by the ruling in Lao Lim v. Court of Appeals, 191 SCRA 151
(1990) that a compromise agreement cannot cover any cause of action that might
arise after the making of the agreement and that any cause of action which may arise
from the application or violation of the compromise agreement is not barred by what
was settled in the prior case.
PETITION for review on certiorari of a decision of the Regional Trial Court of
Makati, Br. 132.
The facts are stated in the opinion of the Court.
     Jacinto D. Jimenez for petitioners.
     Valdellon, Bathan, Santiago & Burkley for private respondent.
MENDOZA, J.:
This is a petition for review on certiorari of the orders of March 17 and May 7, 1993
of the Regional Trial Court of Makati (Branch 132) in Civil Case No. 92-2818.
The facts are as follows:
On March 16, 1992, the herein petitioner spouses Edgardo and Lourdes Guevara and
the private respondent Far East Bank & Trust Co. entered into a compromise
agreement to Civil Case No. 87-4140 which petitioners had brought in the Regional
in the Court of Manila, for the recovery of property foreclosed by the bank. Attached
to the agreement was a Deed of Conditional Sale executed by the parties and made a
part of the agreement, whereby in consideration of the sum of P498,960.00 the bank
agreed to resell to petitioners the property which the latter formerly owned, which
had been foreclosed by the bank.
Under the compromise agreement, petitioners were to give a downpayment of
P45,000.00 and pay the balance of P453,960.00 in twelve (12) monthly installments
of P37,830.00 each, starting February 4, 1992, plus interest a t the rate of 32%.
Should petitioners fail to pay any installment on time, it was stipulated that they
would forfeit all payments made and the bank would then be entitled to rescind the
Deed of Conditional Sale.
On March 30, 1992, the RTC approved the compromise agreement and rendered
judgment in accordance with its terms and conditions.
Petitioners paid the first three installments. On September 30, 1992, however, they
filed a complaint, which they later amended on December 18, 1992, in the RTC of
Makati, alleging that because of race rioting in Los Angeles, California following the
acquittal of police officers involved in the manhandling of Rodney King, a black,
petitioners' film business in California was disrupted, with consequent delay in
payment by the State of petitioners' claim for film and television projects, and that
petitioners requested and private respondent agreed to waive the time clause of the
monthly installments, starting with the installment due on May 4, 1992. However, so
it was alleged, the parties failed to fix the schedule of payment of the balance of the
purchase price which then amounted to P386,605.78. Petitioners prayed that a new
period for payment of the balance be fixed and that private respondent be ordered to
reconvey the property to them upon full payment of the balance.
Private respondent denied that it had agreed to waive the time clause. It asked the
court to dismiss petitioner's complaint on the ground that it was barred by the
judgement in the prior case (Civil Case no. 87-4140) decided by the RTC of Manila.
On March 17, 1993, the RTC granted private respondent's motion and dismissed the
case (Civil Case No. 92-2818). On May 7, 1993, it denied petitioner's motion for
reconsideration. Hence this petition for review on certiorari.
The only issue in this case is whether the judgment based on the compromise
agreement in Civil Case No. 87-4140 constitutes res judicata in the subsequent case
between the same parties. We hold that it does not.
For a judgment to constitute a bar to a subsequent case (1) it must be a final
judgment; (2) the court which rendered it must have jurisdiction over the subject
matter and the parties; (3) it must be on the merits; and (4) there must be between the
two cases identity of parties, subject matter, and causes of action.
All elements of res judicata, except the last, are present here. For while there is an
identity of parties, there is none as to subject matter and cause of action between
Civil Case No. 87-4140 and Civil Case No. 92-2818.
The subject matter of the first case (Civil Case No. 87-4140) was the resale to
petitioners of the property which the bank had acquired through foreclosure sale,
whereas the subject matter of the second case (Civil Case No. 92-2818), is the
rescheduling of payment of the property after the parties originally fixed it in their
compromise agreement.
Nor are the causes of action in the two cases the same, so much so that the same
evidence would not support both of them, which is the test of the identity of causes
of action. Indeed the causes of action cannot be the same for the reason that, if true,
96
the cause of action in the complaint in Civil Case No. 92-2818 only arose after the
judgment in Civil Case No. 87-4140.

To be sure petitioners' later claim, if granted, would result in the modification of the
judgment in the first case, but no more so than if on account of force
majeure petitioners were granted further time within which to discharge their
obligation under that judgment.

The principle of res judicata does not apply, since it extends only to the facts and
conditions as they existed at the time the judgment was rendered. (Calña v. Court of
Appeals, 239 SCRA 252 (1994) Petitioners' claim is that private respondent agreed
to waive in their favor the time clause in the Deed of Conditional Sale starting with
the installment which became due on May 4, 1992. They are thus alleging facts
which did not occur until after the judgment by compromise had been rendered in
Civil Case No. 87-4140 on March 30, 1992. This case is governed by the ruling
in Lao Lim v. Court of Appeals, 191 SCRA 151 (1990) that a compromise agreement
and that any cause of action that might arise after the making of the agreement and
that any cause of action which may arise from the application or violation of the
compromise agreement is not barred by what was settled in the prior case.

It may very well be that petitioners are claiming novation of the compromise
agreement merely to escape the effects of their noncompliance therewith or that if
there is indeed any new contract it is unenforceable under the Statute of Frauds. This
is, however, a matter of defense and proof which is properly left for determination by
the trial court after trial.

WHEREFORE, the orders dated March 17, 1993 and May 7, 1993 issued in Civil
Case No. 92-2818 of the Regional Trial Court of Makati. (Branch 132) are
REVERSED.

SO ORDERED.

97