G.R. No.

182814               July 15, 2015

LIGAYA MENDOZA and ADELIA MENDOZA, Petitioners,

vs.
THE HONORABLE COURT OF APPEALS (EIGHT DIVISION), HONORABLE JUDGE
LIBERATO C. CORTEZ and BANGKO KABAYAN (Formerly IBAAN RURAL BANK,
INC.,) Respondents.

DECISION

PEREZ, J.:

This is a Petition for Certiorari  pursuant to Rule 65 of the Revised Rules of Court, assailing
1

the 29 November 2007 Decision  rendered by the Eighth Division of the Court of Appeals in
2

CA-G.R. SP No. 86745. In its assailed decision, the appellate court affirmed the 28 May
2003 Order  of the Regiorial Trial Court (RTC) of Batangas City, Branch 8 denying the
3

Opposition to the Motion for Execution filed by petitioners Ligaya Mendoza and Adelia
Mendoza.

In a Resolution  dated 28 April 2008, the Court of Appeals denied the Motion for
4

Reconsideration of the petitioners.

The Facts

On 4 September 1997, petitioners obtained a loan from private respondent Bangko Kabayan
(formerly Ibaan Rural Bank) in the amount of ₱12,000,000.00, as evidenced by a Promissory
Note  executed by petitioners.
5

As security for the said obligation, petitioners executed a Deed of Real Estate Mortgage
(REM)  over 71 parcels of land registered under their names and located in Mabini,
6

Batangas. Subsequently, however, petitioners incurred default and therefore the loan
obligation became due and demandable.

On 21 May 1998, private respondent filed a Complaint for Judicial Foreclosure  of the REM
7

over the subject properties before the RTC of Batangas City.

After petitioners admitted the material allegations in the Complaint, the RTC, on 7 March
2002, rendered a Judgment  on the Pleadings, the dispositive portion of which reads:
8

"WHEREFORE, on the basis of the pleadings, judgment is hereby rendered in favor of the
[private respondent] and against the [petitioners] ordering the [petitioners] to pay to the court
or to [private respondent] within a period of ninety (90) days from the entry of this judgment
the amounts hereunder set forth, and in default of such payment, the [properties] shall be
sold at the public auction to satisfy this judgment:

a. The principal sum of TWELVE MILLION PESOS (₱12,000,000.00) with interest

thereon at the rate of 30% per annum and penalty computed from September 4,
1997 until fully paid;

b. Attorney's fees equivalent to 10% of the total amount due, and cost of suit. 9

After petitioners failed to timely interpose an appeal or a motion for reconsideration, private
respondent filed a Motion for Execution to enforce the above judgment which was duly
opposed by the petitioners on the ground that they were not duly served with a copy of the R
TC Decision. It was argued by the petitioners that it was only on 13 June 2002 that their
counsel was able to receive a copy of the said judgment prompting them to immediately file a
Notice of Appeal on the following day, 14 June 2002.

On 28 May 2003 the RTC issued an Order  denying due course to petitioners' Notice of
10

Appeal for being filed out of time. The court a quo declared that petitioners' counsel was
negligent in handling her mails and that negligence is binding upon petitioners. Accordingly,
the RTC forthwith . directed the issuance of the motion for execution, to wit:
WHEREFORE, the [c]ourt declares that the [petitioners'] notice of appeal cannot be given
due course as having been filed out of time, and the opposition to the motion for execution is
hereby DENIED. Accordingly, let the corresponding writ of execution issue. 11

In an Order  dated 13 July 2004, the RTC denied petitioners' Motion for Reconsideration and
12

thereby ordered the Sheriff to proceed with the sale of the foreclosed properties at the public
auction, thus:

WHEREFORE, the [petitioners'] Motion for Reconsideration is hereby DENIED and,

accordingly –

The Order of this [c]ourt dated May 28, 2003; the writ of execution issued on September 25,
2003; and the order dated October 20, 2003 directing the Sheriff of this [c]ourt to proceed
with the sale at public auction of the mortgaged properties subject matter of this case remain
undisturbed and shall be implemented.

Sheriff Rosalinda G. Aguado shall proceed without further delay with the sale [and] execution
of the mortgaged properties. 13

On Certiorari, the Court of Appeals affirmed the assailed RTC Orders after finding that there
was a valid service of the notice of judgment to petitioners' counsel as attested by the
postmaster who enjoys the presumption of regularity in the performance of his official duty
and which presumption was not satisfactorily rebutted by the petitioners in the instant  case.
14

Similarly ill-fated was petitioners' Motion for Reconsideration which was denied by the Court
of Appeals in a Resolution  dated 28 April 2008.
15

Arguing that the Court of Appeals gravely abused its discretion in rendering the assailed
Decision, petitioners filed this instant Petition for Certiorari seeking the reversal of the
appellate court's decision and resolution on the following grounds:

I.

WITH DUE RESPECT TO THE HONORABLE COURT OF APPEALS, THE HONORABLE

COURT COMMITTED GRAVE ABUSE OF ITS DISCRETION AMOUNTING TO LACK OR
IN EXCESS OF JURISDICTION WHEN IT AFFIRMED THE FINDING OF THE
HONORABLE REGIONAL TRIAL COURT OF BATANGAS, BRANCH 8 THAT THERE WAS
VALID SERVICE OF THE NOTICE OF JUDGMENT DATED 7 MARCH . 2002, INSPITE OF
THE OVERWHELMING PIECES OF EVIDENCE TO THE CONTRARY SINCE THE
SECURITY GUARD ASSIGNED IN THE LOBBY OF THE LPL MANSIONS WAS NOT
AUTHORIZED TO RECEIVE ANY MAIL MATTERS OF THE PETITIONERS' COUNSEL OF
RECORD ATTY. MINERVA C. GENOVEA.

II.

WITH DUE RESPECT TO THE HONORABLE COURT OF APPEALS THE HONORABLE

COURT, ERRED AND COMMITTED GRAVE ABUSE OF ITS DISCRETION AMOUNTING
TO LACK OR IN EXCESS OF JURISDICTION IN RULING THAT ATTY. MINERY A C.
GENOVEA IS AT FAULT SINCE SHE FAILED TO ADOPT MEASURES TO ENSURE
NOTICES AND DOCUMENTS INTENDED FOR HER WILL BE DULY RECEIVED BY HER
OR HER STAFF.

III.

WITH DUE RESPECT TO THE HONORABLE COURT OF APPEALS, IT COMMITTED

GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF
JUDRISDICTION WHEN IT UPHELD THE DECISION OF THE HONORABLE REGIONAL
TRIAL COURT PRESIDING JUDGE .WHEN THE LATTER PRECIPITATELY DENIED DUE
COURSE [TO] THE NOTICE OF APPEAL SEASONABLY FILED BY THE PETITIONERS
ON 14 JUNE 2002 OR ONE (1) DAY FOLLOWING ACTUAL RECEIPT OF THE
JUDGEMENT (sic) DATED 7 MARCH 2002 BY THE PETITIONERS.

IV.
GRANTING ARGUENDO, THAT INDEED THERE WAS VALID SERVICE OF JUDGMENT
ON THE PETITIONERS, STILL THE HONORABLE COURT HAS THE POWER AND
DISCRETION TO EXTEND THE PERIOD FOR FILING THE RECORD ON APPEAL IN THE
INTEREST OF JUSTICE; BESIDES AS REVEALED AND BASED ON RECORDS OF THE
CASE, IT IS APP ARENT THAT THE JUDGMENT WAS RENDERED THROUGH A MERE
MOTION ON JUDGMENT ON THE PLEADINGS, WHICH WAS FROWNED UPON BY NO
LEES THAN THIS HONORABLE COURT, PROPHETICALLY EMPHASIZED IN ITS
NUMEROUS PRONOUNCEMENTS, THAT SHORT-CUTS IN JUDICIAL PROCESSES ARE
TO BE A VOIDED WHERE THEY IMPEDE RATHER THAN PROMOTE A JUDICIOUS
DISPENSATION OF JUSTICE.

V.

WITH DUE RESPECT TO THE HONORABLE COURT OF APPEALS, THE HONORABLE

COURT COMMITTED GRAVE ABUSE OF ITS DISCRETION AMOUNTING TO LACK OR
IN EXCESS OF DISCRETION WHEN IT STATED THAT NOTICE SENT TO THE
COLLABORATING COUNSEL ATTY. JUANITO L. VELASCO, JR. WAS VALID SERVICE
UPON THE PETITIONERS.

VI.

WITH DUE RESPECT TO THE HONORABLE OF APPEALS, THE HONORABLE COURT

ERRED AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION WHEN IT FAILEP TO
RULE THAT NO VALID EXECUTION CAN BE EFFECTED SEEING AS THERE WAS
ABSENCE OF ACTUAL NOTICE TO HEREIN PETITIONERS. 16

The Court's Ruling

The crux of the entire controversy is nestled on the issue of whether or not there was a valid
service of the 7 March 2002 RTC Judgment to the petitioners.

As a rule where a party appears by attorney in an action or proceeding in a court of record,

all notices or orders required to be given therein must be given to the attorney of record.
Accordingly, notices to counsel should be properly sent to his address of record, and, unless
the counsel files a notice o f change of address, his official address remains to be that his
address of

Record. 17

There is no question that in this case, petitioners' counsel was able to receive a copy of the
judgment, as evidenced by the Certification  issued by the Postmaster General. As borne by
18

the Certification, the said copy of the judgment was duly delivered to the address on record
of the petitioners' counsel at 2/F LPC Mansion, 122 L.P. Leviste St., Salcedo Village, Makati
City and was received by Daniel Soriano, the security guard on 15 March 2002.

While petitioners impliedly admitted the fact that the security guard in the building where their
counsel's office is located received the copy of the judgment, they argued, however, that
such receipt is not valid under the law,. a contention which pulled the rug from under their
feet exposing the utter frailty of their position. In Balgami v. Court of Appeals,  the Court
19

instructed the counsels to device a system to ensure that official communications would be
promptly received by them, lest, they will be chargeable with negligence, thus:

x x x. The law office is mandated to adopt and arrange matters in order to ensure that official
or judicial communications sent by mail would reach the lawyer assigned to the case. The
court has time and again emphasized that the negligence of the clerks, which adversely
affect the cases handled by lawyers, is binding upon the latter. The doctrinal rule is that
negligence of the counsel binds the client because, otherwise, there would never be an end
to a suit so long as new counsel could be employed who could allege and [prove] that prior
counsel had not been sufficiently diligent, or experienced, or learned.

Evidently, petitioners' counsel was wanting on this respect. Not only did petitioners' counsel
fail to device a system for the prompt and efficient receipt of mails intended for her, she also
failed to ensure that she could be notified of the decision as soon as possible. As a
practicing lawyer, petitioners' counsel should have been more circumspect in monitoring
official communications intended for her so as to avoid situations like this, where a mail
matter was inexplicably lost after delivery thereby running the risk of losing a client's case on
technicality. Petitioners' counsel cannot hide behind the security guard's negligence to shield
her even professional negligence in an effort to seek reversal of a decision that has long
attained finality. It bears stressing that a decision had become final and executory without
any party perfecting an appeal or filing a motion for reconsideration within the reglementary
period. It was only months after its finality that questions assailing the Decision were raised.

Neither can petitioners exempt themselves or their properties from the operation of a final
and executory judgment by harping on their counsel's · negligence. Jurisprudence is replete
with pronouncements that clients are bound by the actions of their counsel in the conduct of
their case. If it were otherwise, and a lawyer's mistake or negligence was admitted as a
reason for the opening of the case, there would be no end to litigation so long as counsel
had not been sufficiently diligent or experienced or learned.  The only exception to the
20

general rule is when the counsel's actuations are gross or palpable, resulting in serious
injustice to client, that courts should accord relief to the party.  Indeed, if the error or
21

negligence of the counsel did not result in the deprivation of due process to the client,
nullification of the decision grounded on grave abuse of discretion is not warranted.  The22

instant case does not fall within the exception since petitioners were duly given their day in
court.

Furthermore, it is a well-settled principle in this jurisdiction that a client is bound by the action
of his counsel in the conduct of the case and cannot be heard to complain that the result
might have been different had he · proceeded differently.  Every counsel has the implied
23

authority to do all acts which are necessary or, at least, incidental to the prosecution and
management of the suit in behalf of his client. And, any act performed by · counsel within the
scope of his general and implied authority is, in the eyes of law, regarded as the act of the
client himself and consequently, the mistake or negligence of the client's counsel may result
in the rendition of unfavorable judgment against him.  To rule otherwise would result to a
24

situation that every defeated party, in order to salvage his case, would just have to claim
neglect or mistake on the part of his counsel as a ground for reversing an adverse judgment.
There would be no end to litigation if this were allowed as every shortcoming of counsel
could be the subject of challenge of his client through another counsel who, if he is also
found wanting, would likewise be disowned by the same client through another counsel, and
so on ad infinitum. This would render court proceedings indefinite, tentative and subject to
reopening at any time by the mere subterfuge of replacing counsel. 25

In fact, this is not the first time that the Court dismissed the claim of litigants that they were
denied their day in court by conveniently invoking the mistake of their counsel in their vain
effort to seek reversal of a judgment that has long become final and executory. In Juani v.
Alarcon,  We struck down the ploy of the petitioner to prolong the court process by unduly
26

harping on his counsel's negligence to evade a valid obligation, thus:

Clearly, this is an instance where the due process routine vigorously pursued by Bienvenido
Juani and his successor-in-interest is but a clear-cut afterthought meant to delay the
settlement of uncomplicated legal dispute. Aside from clogging the court dockets, the
strategy is deplorably a common curse resorted to by losing litigants in the hope of evading
manifest obligations. This Court will ever be vigilant to nip [in] the bud any dilatory maneuver
calculated to defeat or frustrate the ends of justice, fair play and the prompt .implementation
of final and executory judgments.

Truly, a litigant bears the responsibility to monitor the status of his case,. for no prudent party
leaves the fate of his case entirely in the hands of his lawyer.  It is the client's duty to be in
1âwphi1

contact with his lawyer from time to time in order to be informed of the progress and
developments of his case; hence, .to merely rely on the bare reassurance of his lawyer that
everything is being taken care of is not enough.  Where the party failed to act with prudence
27

and diligence, its plea that it was not accorded the right to due process cannot elicit this
court's approval or even sympathy. 28

When a party lost the right to appeal on account of his own and his counsel's negligence,
and, as a result of which, a judgment has attained. finality, such party cannot thereafter
unduly burden the courts by endlessly pursuing the due process routine in . an effort to
frustrate the prompt implementation of final and executory judgment. It must be emphasized
that . the instant case stemmed from a simple judicial foreclosure proceeding involving
several parcels of land where the trial court, after finding that petitioners admitted the
material allegations in the complaint, rendered a judgment on the pleadings.

Litigation must end and terminate sometime and somewhere, and it is essential to an
effective administration of justice that once a judgment has · become final the issue or the
cause involved therein should be laid to rest. This doctrine of finality of judgment is grounded
on fundamental consideration of public policy and sound practice. In fact, nothing is more
settled in law than that once a judgment attains finality it thereby becomes immutable and
unalterable. It may no longer be modified in any respect, even if the modification is meant to
correct what is perceived to be an erroneous conclusion of fact and law, and regardless of
whether the modification is attempted to be made by the court rendering it or by the highest
court of the land.  Just as a losing party has the right to file an appeal within the' prescribed
29

period, the winning party has the correlative right to enjoy the finality of the resolution of his
case by the execution and satisfaction of the judgment, which is the "life of the law."  To
30

frustrate it by dilatory scheme on the part of the losing party is to frustrate all efforts, time and
expenditure of the courts. It is in the best interest of justice that this court write finis to this
litigation. 31

WHEREFORE, premises considered, the petition is hereby DISMISSED. The assailed

Decision dated 29 November 2007 and · Resolution dated 28 April 2008 of the Court of
Appeals in CA-G.R. SP No. 86745 are hereby AFFIRMED.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO

Chief Justice
Chairperson

TERESITA J. LEONARDO DE-CASTRO LUCAS P. BERSAMIN

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the
above Decision were reached in consultation before the case was assigned to the writer of
the opinion of the Court's Division.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes

1
 Rollo, pp. 3-42.

 Id. at 43-53; Penned by Associate Justice Jose C. Reyes, Jr. with Associate
2

Justices Jose L. Sabio, Jr. and Myrna Dimaranan Vidal concurring.

3
 Id. at 164-168.

4
 Id. at 54.
5
 Id. at 79.

6
 Id. at 80-96.

7
 Id. at 55-78.

8
 Id. at 122-124.

9
 Id. at 124.

10
 Id. at 164-168.

11
 Id. at 167.

12
 Id. at 221-229.

13
 Id. at 229.

14
 Id. at 43-53.

15
 Id. at 54.

16
 Id. at 11-13.

17
 National Power Corporation v. Tac-an, 445 Phil. 515, 522 (2003).

18
 Rollo, pp. 49 & 137.

19
 Balgami v. Court of Appeals, 487 Phil. 102, 113 (2004).

20
 GCP-Manny Transport Services, Inc. v. Principe, 511 Phil. 176, 184-185 (2005).

21
 Id.

22
 Id.

23
 Juani v. Alarcon, 532 Phil. 585, 603 (2006).

24
 Id.

25
 Id. at 603-604.

26
 Id. at 602.

27
 Bejarasco, Jr., v. People, 656 Phil. 337, 340 (2011).

28
 GCP-Manny ,Transport Services, Inc., v. Principe, supra note 20 at 186.

29
 Juani v. Alarcon, supra note 23 at 604.

30
 De Leon v. Public Estates Authority. et al., 640 Phil. 594, 611-612 (2010).

31
 Id. at 612.
 April 19, 2017

G.R. No. 189881

BACLARAN MARKETING CORPORATION, Petitioner,

vs.
FERNANDO C. NIEVA and MAMERTO SIBULO, JR., Respondents

DECISION

JARDELEZA, J.:

This is a Petition for Review on Certiorari  of the August 26, 2009  and October 9,
1 2

2009  Resolutions of the Court of Appeals (CA) in CA-G.R. SP No. 108033. The CA denied
3

due course and dismissed Baclaran Marketing Corporation's (BMC) Petition for Annulment of
Judgment on the ground that it is not a remedy available to BMC.

Petitioner BMC is a domestic corporation engaged in the business of distribution, marketing

and delivery of cement.   It is one of the defendants in Civil Case No. 1218-A,
4

entitled "Mamerto Sibulo, Jr. v. Ricardo Mendoza and Baclaran Marketing, Inc." pending with
the Regional Trial Court of Antipolo, Branch 74 (Antipolo Court).  The case is one for
5

damages arising from a vehicular collision in Taytay, Rizal between a 10-wheeler truck
owned by BMC and driven by its employee Ricardo Mendoza (Mendoza), and a car owned
and driven by Mamerto Sibulo, Jr. (Sibulo). The Anti polo Court, in its Decision6 dated
November 21, 1990 (1990 Decision), ruled in favor of BMC and Mendoza and dismissed
Sibulo's complaint.   It found that the damages suffered by Sibulo were the result of his own
7

reckless and imprudent driving. 8

On appeal, the CA, in its Decision  dated May 9, 2005 reversed the Antipolo Court and held
9

that Mendoza's negligence caused the collision. It awarded Sibulo damages in the total
amount of ₱765,159.55.   In the absence of a motion for reconsideration, the Decision
10

became final and executory on June 12, 2005.   The Antipolo Court subsequently issued a
11

Writ of Execution12 on January 16, 2006. Then, in an Order  dated February 23, 2006, it
13

directed the Deputy Sheriff, upon motion of Sibulo, to implement the Writ of Execution
against the real properties owned by BMC, as it appears that BMC has no personal
properties. The sheriff of the Antipolo Court levied upon BMC's real property in Parafiaque
City covered by Transfer Certificate of Title (TCT) No. 34587 (property). He sold the property
and its improvements through public auction on April 17, 2006. Respondent Fernando C.
Nieva (Nieva) emerged as the highest bidder paying the total price of ₱800,000.00.  14

For BMC's failure to redeem the property within one year from the sale, Nieva consolidated
ownership over it. He filed a Petition for Cancellation of Transfer Certificate Title No. 34587
and Issuance of New [Title] in the Regional Trial Court of Parañaque City, Branch 257
(Parañaque Court) pursuant to Section 107 of Presidential Decree No. 1529.  The case was
15

docketed as LRC Case No. 07-0119.  The Parañaque Court granted the petition in its
16

Decision   dated March 26, 2008 and ordered BMC to surrender to Nieva, within 15 days
17

from receipt of the Decision, its owner's duplicate certificate of title over the property. Failing
such, the Parañaque Court ordered the Register of Deeds to annul TCT No. 34587 and
issue a new title in Nieva's name. The Decision of the Parañaque Court became final on May
8, 2008.  Consequently, Nieva filed a Petition for Issuance of a Writ of Possession over the
18

property in the Parañaque Court. The case was docketed as LRC Case No. 08-0077. The
Parañaque Court granted the petition in its Decision19 dated January 26, 2009 and issued a
Writ of Possession and Notice to Vacate against BMC dated March 12, 2009 and March 22,
2009, respective1y.  20

In view of the Writ of Possession and Notice to Vacate issued against it, BMC filed a Petition
for Annulment of Judgment   before the CA. BMC prayed for the annulment of the following
21

orders and decisions:

(a) Writ of Execution dated January 16, 2006 issued by the Antipolo Court in Civil Case No.
1218-A;
(b) Order dated February 23, 2006 of the Antipolo Court in Civil Case No. 1218-A ordering
the implementation of the writ of execution over the real properties of BMC;

(c) Auction Sale dated April 17, 2006;

(d) Decision dated March 26, 2008 of the Parañaque Court in LRC Case No. 07-0119
canceling TCT No. 34587; and

(e) Decision dated January 26, 2009 of the Parañaque Court in LRC Case No. 08-0077,
ordering the issuance of a Writ of Possession.  22

BMC alleged that its counsel, Atty. lsagani B. Rizon (Atty. Rizon), committed acts of gross
and inexcusable negligence constituting "extrinsic fraud," which deprived it of due process
and an opportunity to present its side.  It discovered the fraud only in December 2008 when
23

its representatives tried to pay the real estate tax on the property, only to learn that the title to
it had already been transferred to Nieva.  BMC averred that it did not know that Sibulo
24

appealed the 1990 Decision of the Antipolo Court to the CA. It claimed that Atty. Rizon
assured BMC that the 1990 Decision ended the controversy.  Had BMC la1own of the
25

appeal, it could have opposed the proceedings or engaged the services of new counsel.

BMC claimed that it immediately called Atty. Rizon in his office upon discovering that the
property was levied upon and sold at public auction. However, BMC was informed that Atty.
Rizon died on January 30, 2009. It also learned that Atty. Rizon ran for public office and won
as Mayor of Baroy, Lanao Del Norte in the 1995, 2001, 2004 and 2007 elections.  BMC 26

alleged that based on court records, notices relative to the case against BMC were sent to
Atty. Rizon but, for some reason unknown to BMC, Atty. Rizon never informed it of the court
documents/processes. 27

BMC emphasized that the Antipolo Court ruled in its favor in Civil Case No. 1218-A and that
it was only when BMC failed to participate in the appeal that an adverse decision was
rendered against it.   It maintains that if the orders of the Antipolo and Parañaque Courts
28

were allowed to stand, BMC will be deprived of its substantial property rights over the
property: when the property was sold to Nieva at the public auction for a bid price of
P800,000.00, its market value  was already P19,890,000.00.
29 30

The CA, in its Resolution dated August 26, 2009, denied BMC's petition. It ruled that the
remedy of annulment of judgment is not available to BMC because:

(a) Extrinsic fraud refers to a fraud perpetrated by the prevailing party, not by the
unsuccessful party's own counsel. 31

(b) BMC is bound by the negligence of Atty. Rizon because it was negligent for not checking
on the status of the case. It did not also inform the Antipolo Court of its change of address.
Thus, BMC cannot claim that it was denied due process.  32

(c) A writ of execution or auction sale are not in the nature of a final judgment, order, or
resolution, hence, they cannot be the subject of an action to annul judgment. 33

BMC moved for reconsideration; this, however, was denied. Hence, this petition,  which 34

raises the sole issue of whether the CA erred in dismissing BMC's petition for annulment of
judgment.

We deny the petition.

Rule 47 of the Rules of Court governs actions for the annulment of final judgments, orders,
or resolutions of regional trial courts in civil actions. It is a recourse equitable in character,
allowed only in exceptional cases where there is no available or other adequate remedy.  Its 35

objective is to set aside a final and executory judgment, which is not void upon its face, but is
entirely regular in form, and whose alleged defect is not apparent upon its face or from the
recitals contained in the judgment.  Since it disregards the time-honored rule of immutability
36

and unalterability of final judgments, the Rules of Court impose stringent requirements
before a litigant may avail of it. In Pinausukan Seafood House v. Far East Bank & Trust
Company,  we held that "[g]iven the extraordinary nature and the objective of the remedy of
37

annulment of judgment or final order,"  a petitioner must comply with the statutory
38

requirements as set forth under Rule 47. These are:

(1) The remedy is available only when the petitioner can no longer resort to the ordinary
remedies of new trial, appeal, petition for relief or other appropriate remedies through no
fault of the petitioner; (2) The grounds for the action of annulment of judgment are limited to
either extrinsic fraud or lack of jurisdiction; (3) The action must be filed within four years from
the discovery of the extrinsic fraud; and if based on lack of jurisdiction, must be brought
before it is barred by laches or estoppel; and (4) The petition must be verified, and should
allege with particularity the facts and the law relied upon for annulment, as well as those
supporting the petitioner's good and substantial cause of action or defense, as the case may
be.39

BMC's petition for annulment of judgment fails to meet the first and second requisites.

II

Rule 47, Section 1 limits the applicability of the remedy of annulment of judgment
to final judgments, orders or resolutions.  A final judgment or order is one that finally
40

disposes of a case, leaving nothing more for the com1 to do in respect thereto. This may be
an adjudication on the merits which, on the basis of the evidence presented at the trial,
declares categorically what the rights and obligations of the parties are and which party is in
the right, or a judgment or order that dismisses an action on the ground of res judicata or
prescription.  In contrast, an interlocutory order does not dispose of a case completely but
41

leaves something to be done upon its merits. 42

We find that the CA correctly denied BMC's petition.

In Guiang v. Co,  we declared that an auction sale and a writ of execution are not final
43

orders. Thus, they cannot be nullified through an action for annulment of judgment, to wit:

It bears stressing that Rule 47 of the Rules of Civil Procedure applies only to a petition to
annul a judgment or final order and resolution in civil actions, on the ground of extrinsic fraud
or lack of jurisdiction or due process. A final order or resolution is one which is issued by a
court which disposes of the subject matter in its entirety or terminates a particular proceeding
or action, leaving nothing else to be done but to enforce by execution what has been
determined by the court. The rule does not apply to an action to annul the levy and sale
at public auction of petitioner's properties or the certificate of sale executed by the
deputy sheriff over said properties. Neither does it apply to an action to nullify a writ
of execution because a writ of execution is not a final order or resolution, but is
issued to carry out the mandate of the court in the enforcement of a final order or of a
judgment. It is a judicial process to enforce a final order or judgment against the
losing party.  (Citations omitted, emphasis supplied.)
44

Corollarily, an order implementing a writ of execution issued over certain real properties is

also not a final order as it merely enforces a judicial process over an identified object. It does
not involve an adjudication on the merits or determination of the rights of the parties.

Closely related to a writ of execution is a writ of possession. In LZK Holdings and

Development Corp. v. Planters Development Bank,  we explained that a writ of possession
45

is a writ of execution employed to enforce a judgment to recover the possession of land. It

commands the sheriff to enter the land and give its possession to the person entitled under
the judgment.  Thus, similar to a writ of execution, a writ of possession is not a final order
46

which may be annulled under Rule 47. It is merely a judicial process to enforce a final order
against the losing party. For this reason the Decision of the Antipolo Court ordering the
issuance of writ of possession is also not amenable to an action for annulment of judgment.

In fine, only the Decision of the Parafiaque Court ordering the cancellation ofBMC's title over
the property qualifies as a final judgment. It is a judgment on the merits declaring who
between Nieva and BMC has the right over the title to the property. Therefore, it may be the
subject of an action for annulment of judgment. Be that as it may, BMC failed to prove that
any of the grounds for annulment are present in this case.

III

Rule 47, Section 2 provides extrinsic fraud and lack of jurisdiction as the exclusive grounds
for the remedy of annulment of judgment.  Case law, however, recognizes a third ground--
47

denial of due process of law. Arcelona v. Court of Appeals  teaches that a decision which is
48

patently void may be set aside on grounds of want of jurisdiction or "non-compliance with
due process of law. " 49

Here, BMC invokes extrinsic fraud and lack of due process as grounds for its petition for
annulment of judgment. It claims that Atty. Rizon's gross negligence in handling the case
constitutes extrinsic fraud and deprived it of due process of law.

We are not persuaded. Extrinsic fraud refers to a fraud committed to the unsuccessful party
by his opponent preventing him from fully exhibiting his case by keeping him away from
court, a false promise of a compromise; or where the defendant never had knowledge of the
suit, being kept in ignorance by the acts of the plaintiff; or when an attorney fraudulently or
without authority connives at his defeat.  50

In Pinausukan,   we held that a lawyer's neglect in keeping track of the case and his failure
51

to apprise his client of the developments of the case do not constitute extrinsic fraud. Fraud
is not extrinsic if the alleged fraudulent act was committed by petitioner's own counsel. The
fraud must emanate from the act of the adverse party and must be of such nature as to
deprive petitioner of its day in court.   Thus, in many cases, we have held that a lawyer's
52

mistake or gross negligence does not amount to extrinsic fraud that would grant a petition for
annulment of judgment.  53

In this case, the CA correctly found that BMC neither alleged nor proved that the gross
negligence of its former counsel was done in connivance with Nieva or Sibulo.   Therefore, it
54

is not the extrinsic fraud contemplated under Rule 47, Section 2.

BMC maintains that it was denied due process of law because it was not able to participate
in the proceedings subsequent to the 1990 Decision of the Antipolo Court. It alleges that
Atty. Rizon did not inform it of Sibulo's appeal and of the orders and processes issued by the
courts.   BMC pleads that Atty. Rizon's gross negligence in handling the case is tantamount
55

to abandonment of the same.   Thus, it should not be bound by the negligence of its counsel.
56

Nieva and Sibulo, on the other hand, assert that BMC was not deprived of due process. They
aver that the records of the CA show that BMC was furnished with a copy of the decision of
the CA and a copy of the entry of judgment. 57

BMC' s contentions have no leg to stand on. It is well-settled that the negligence of the
counsel binds the client, except in cases where the gross negligence of the lawyer deprived
his client of due process of law. However, mere allegation of gross negligence does not
suffice. In the recent case of Ong Lay Hin v. Court of Appeals,  we held that for the
58

exception to apply, the client must prove by clear and convincing evidence that he was
maliciously deprived of information that he could not have acted to protect his interests. The
error of his counsel must have been both palpable and maliciously exercised that it could
viably be the basis for a disciplinary action.  Pertinently, malice is never presumed but must
59

be proved as a fact. The record is bereft of showing that BMC alleged and proved that Atty.
Rizon was motivated by malice in failing to infonn it of Sibulo' s appeal.

Moreover, the gross negligence of the counsel must not be accompanied by the client's own
negligence.  In Bejarasco, Jr. v. People,  we ruled that for his failure to keep himself up-to-
1âwphi1
60

date on the status of his case, the client should suffer whatever adverse judgment is
rendered against him. A litigant bears the responsibility of monitoring the developments of
his case for no prudent party leaves the fate of his case entirely in the hands of his lawyer. 61

In this light, BMC cannot pass all the blame to Atty. Rizon. It admitted in its petition before us
that after obtaining a favorable decision from the Anti polo Court, it did not bother to check
the status of the case.   While it might be true that Atty. Rizon assured it that the case has
62
already ended with the 1990 Decision, the prudent thing would have been for BMC to ask for
evidence or proof that the decision was already final. This, BMC failed to do.

Since Sibulo's claim for damages involves a considerable amount of money, BMC is
expected to protect its own interest and not merely to rely on its counsel. It is the duty of.
BMC to be in touch with its counsel regarding the progress of the case. It cannot just sit
back, relax, and wait for the outcome of the case.  Since the alleged negligent act of its
63

counsel was accompanied by BMC's own negligence, the latter shall be bound by the
fonner's negligence.

We commiserate with the plight of BMC, assuming that it was indeed unaware of the
proceedings subsequent to the 1990 Decision. Nevertheless, we cannot simply disregard the
statutory requirements of an action for annulment of judgment, lest we open the gates for
possible abuse of litigants who seek to delay the enforcement of final and executory
judgments of the courts.

WHEREFORE, the petition is DENIED for lack of merit. The August 26, 2009 and October 9,
2009 Resolutions of the Court of Appeals in CA-G.R. SP No. 108033 are
hereby AFFIRMED.

SO ORDERED.

FRANCIS H. JARDELEZA,
Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

LUCAS P. BERSAMIN MARVIC M.V.F. LEONEN

Associate Justice Associate Justice

NEOL G. TIJAM
Associate Justice

ATTESTATION

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

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division

CERTIFICATION

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

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes
 Designated as Additional Member in lieu of Associate Justice Bienvenido L. Reyes
*

per Raffle dated March 27, 2017.

 Rollo, pp. 3-37; With Urgent Motion for the Issuance of a Temporary Restraining
1

Order and/or Writ of Preliminary Injunction.

 Id. at 42-50. Penned by Associate Justice Portia Alino-Hormachuelos with

2

Associate Justices Fernanda Lampas-Peralta and Ramon R. Garcia, concurring.

3
 Id. at 52-53.

4
 Id. at 5.

5
 Id.

6
 Rollo, pp. 54-56, penned by Judge Daniel P. Alfonso.

7
 Id. at 56.

8
 Id

 Rollo, pp. 58-73. Penned by Associate Justice Rosalinda Asuncion-Vicente with

9

Associate Justices Godardo A. Jacinto and Bienvenido L. Reyes, concurring.

10
 Id. at 72.

11
 Id. at 192.

12
 Id. at 74-75.

13
 Id. at 76-77.

14
 Id. at 8.

15
 Property Registration Decree.

16
 Rollo, p. 19.

17
 Id. at 89-91.

18
 Id. at 92-93

19
 Id. at 94-96.

20
 Id. at 11.

 Id. at 131-158; With Urgent Motion for Issuance of a Temporary Restraining Order
21

and/or Writ of Preliminary Injunction.

22
 Id. at 133.

23
 Id. at 134.

24
 Id.

25
 Rollo, p. 137

26
 Id

27
 Id
  Rollo, p. 139.
28

 Pegged at the time Nieva paid the capital gains tax.

29

 Rollo, p. 135.
30

 id. at 46.
31

 id. at 48.
32

 id. at 49-50.
33

 id. at 32. BMC also prays for the issuance of a temporary restraining order and/or
34

writ of preliminary injunction to enjoin the implementation of the writ of possession

issued by the Parañaque Court. BMC maintains that if not enjoined by this Court,
BMC will be ejected from the property and Nieva will undoubtedly transfer it to a third
person.

 Antonino v. Register of Deeds of Makati City, G.R. No. 185663, June 20, 2012, 674
35

SCRA 227, 236 citing Ramos v. Judge Combong, Jr., G.R. No. 144273, October 20,
2005, 473 SCRA 499

 Arcelona v. Court of Appeals, G.R. No. 102900, October 2, 1997, 280 SCRA 20,
36

32-33, citing Macabingkil v. People's Homesite and Housing Corporation, G.R. No. L-

29080, August I 7, I 976, 72 SCRA326.

 G.R. No. 159926, January 20, 2014, 714 SCRA 226.

37

 Id. at 241.
38

 Id. at 242-247.
39

 Sec. I. Coverage. - This Rule shall govern the annulment by the Court of Appeals of
40

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.

 Ybiernas v. Tanco-Gabaldon, G.R. No. 178925, June l, 2011, 650 SCRA 154, 166,
41

citing Intramuros Tennis Club, Inc. v. Philippine Tourism Authority, G.R. No. 135630,

September 26,, 341 SCRA 90.

 Fenequito v. Vergara, Jr., G.R. No. 172829, July 18, 2012, 677 SCRA 113, 119.
42

 G.R. No. 146996, July 30, 2004, 435 SCRA 556.

43

 Id. at 562. See also Land Bank of the Philippines v. Planta, G.R. No. 152324, April
44

29, 2005, 457 SCRA 664.

 G.R. No. 167998, April 27, 2007, 522 SCRA 731.

45

 Id. at 738, citing Ong v. Court of Appeals, G.R. No. 121494, June 8, 2000, 333
46

SCRA 189, 195;;

47
 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.

 Supra note 36.
48
  See also Benatiro v. Heirs of Evaristo Cuyos, G.R. No. 161220, July 30, 2008, 560
49

SCRA 478, 494- 495, citing Intestate Estate of the Late Nimfa Sian v. Philippine
National Bank, G.R. No. 168882, January 31, 2007, 513 SCRA 662.

 Cosmic Lumber Corporation v. Court of Appeals, G.R. No. 114311, November 29,

50

1996, 265 SCRA 168, 180.

 Supra note 37.
51

 Id. at 232.
52

 Lasala v. National Food Authority, G.R. No. 171582, August 19, 2015, 767 SCRA
53

430, 448.

 Rollo, p. 46.
54

 Id. at 15.
55

 Id.at16.
56

 Id. at 197.
57

 G.R. No. 191972, January 26, 2015, 748 SCRA 198.

58

 Id. at 208.
59

 G.R.No.159781,February2, 2011,641 SCRA328.

60

 Id. at 331, citing Delos Santos v. Elizalde, G .R. No. 141810, February 2, 2007, 514
61

SCRA 14, 30-31, further citing Bernardo v. Court of Appeals (Special Sixth

Division), G.R. No. 106153, July 14, 1997, 275 SCRA 143.

 Rollo, p. 17.
62

 Manaya v. Alabang Country Club, Incorporated, G.R. No. 168988, June 19, 2007,
63

525 SCRA 140, 148, citing GCP-Manny Transport Services, Inc. v. Principe, G.R.

No. 141484, November 11, 2005, 474 SCRA 555, 563-564.