Appeals, Remedial Law

Banaga v. Majaducon G.R. No. 149051 June 30, 2006 Appellate Remedies, Writ of Execution of a Final Judgment


An action for redemption of a parcel of land situated in General Santos City filed by petitioner Biblia Banaga against private respondent Candelario Damalerio. 

The trial court dismissed petitioner’s complaint.

On appeal, the Court of Appeals reversed the trial court and upheld petitioner’s right to redeem the property.

Private respondent’s appeal from said decision via a petition for review on certiorari was denied by this Court.

However, petitioner failed to exercise her right to redeem within the given period. Private respondent moved to declare the termination of the 30-day redemption period, but the trial court denied the same. Thus, private respondent filed a petition for certiorari praying for the nullification of said order. The CA granted private respondent’s petition, prompting petitioner to appeal to this Court. Petitioner’s appeal was denied for lack of merit. The decision became final and executory and a writ of execution issued as a consequence. 

However, the Register of Deeds refused to issue a certificate of title in the name of private respondent.

Litigation commenced once again when private respondent elevated the case to the CA via a petition for certiorari and mandamus.

The CA’s Decision which was affirmed by this Court, directed the Register of Deeds to issue certificates of title in the name of private respondent and the trial court to issue a writ of execution and a writ of possession in favor of respondent.

The records of the case were subsequently remanded to the trial court for execution of judgment. Thus, upon motion by private respondent, the trial court issued a writ of execution and a writ of possession for the delivery of the subject property, denominated as Lot 2-G-2, to private respondent. The corresponding certificate of title was also issued to private respondent in consonance with the final decision. 

Private respondent was placed in possession of Lot 2-G-2, which he fenced with galvanized iron sheets.

Private respondent moved for the issuance of a special order for demolition of a structure alleged to be erected within Lot 2-G-2. Petitioner objected, claiming that the structure is situated within Lot 2-G-1, the adjacent property retained and still owned by petitioner. 

A survey of the lots by two surveyors revealed conflicting results. 

Hence, the trial court ordered Engr. Gerardo Dida of the DENR to conduct a relocation survey. Engr. Dida’s report indicated that Lot 2-G-1 had encroached on private respondent’s Lot 2-G-2 by some 136 square meters.

The trial court issued the first assailed Order approving the report submitted by Engr. Dida. Petitioner filed a notice of appeal but the same was denied when the trial court issued the second assailed Order. Petitioner moved for the reconsideration of the October 2, 2000 Order but the trial court denied the motion through the third assailed Order.

Thereafter, petitioner instituted a special civil action for certiorari, prohibition and mandamus with a prayer for the issuance of a writ of preliminary injunction with the CA, which issued a temporary restraining order to prevent the execution of the assailed orders and the demolition of the structures alleged to be encroaching upon private respondent’s property.

The CA dismissed the petition on the ground that petitioner failed to show that the trial court committed grave abuse of discretion in approving the survey report submitted by Engr. Dida. Moreover, it ruled that the resolution of the boundary dispute was an incident of the execution proceedings; thus, no appeal may be taken from the trial court’s order approving the survey report in accordance with Section 1(f), Rule 41 of the Rules of Court. The appellate court also declared petitioner to be bound by her manifestation to respect the survey report. In any case, petitioner should have first moved for the reconsideration of the order approving the survey report instead of immediately filing a notice of appeal, said the appellate court.

Hence, this petition.


May appeal be taken from a writ of execution of a final judgment?


The instant petition is GRANTED.

Even prior to the promulgation of the 1997 Rules of Civil Procedure, the rule that no appeal lies from an order or writ directing the execution of a final judgment, for otherwise a case will not attain finality, is not absolute since a party aggrieved by an improper or irregular execution of a judgment is not without a remedy. 

Thus, in Limpin v. Intermediate Appellate Court, the Court enumerated the exceptional circumstances where a party may elevate the matter of an improper execution for appeal, to wit:

There may, to be sure, be instances when an error may be committed in the course of execution proceedings prejudicial to the rights of a party. These instances, rare though they may be, do call for correction by a superior court, as where –

1) the writ of execution varies the judgment;

2) there has been a change in the situation of the parties making execution inequitable or unjust;

3) execution is sought to be enforced against property exempt from execution;

4) it appears that the controversy has never been subject to the judgment of the court;

5) the terms of the judgment are not clear enough and there remains room for interpretation thereof; or

6) it appears that the writ of execution has been improvidently issued, or that it is defective in substance, or is issued against the wrong party, or that the judgment debt has been paid or otherwise satisfied, or the writ was issued without authority;

In these exceptional circumstances, considerations of justice and equity dictate that there be some mode available to the party aggrieved of elevating the question to a higher court. That mode of elevation may be either by appeal (writ of error or certiorari), or by a special civil action of certiorari, prohibition, or mandamus.

The Court finds no sound justification to abandon the aforequoted pronouncement insofar as it recognizes the filing of an ordinary appeal as a proper remedy to assail a writ or order issued in connection with the execution of a final judgment, where a factual review in the manner of execution is called for to determine whether the challenged writ or order has indeed varied the tenor of the final judgment.

To rule that a special civil action for certiorari constitutes the sole and exclusive remedy to assail a writ or order of execution would unduly restrict the remedy available to a party prejudiced by an improper or illegal execution. A special civil action for certiorari is not a mode of appeal where the appellate court reviews the errors of fact or law committed by the lower court. The issue in a special civil action for certiorari is whether the lower court acted without or in excess of jurisdiction or with grave abuse of discretion.

In the instant case, an ordinary appeal is the more proper and adequate remedy to address the factual allegations raised by petitioner. Petitioner’s vigorous objection to the survey report centered on her position that it would alter the present boundaries and result to awarding to private respondent a portion of Lot 2-G-1 belonging to her. 

The technical findings of the surveyor as well as the trial court’s appreciation thereof must undergo the scrutiny of the appellate process. The trial court’s order adopting and approving the survey report cannot be regarded as final and unappealable.

In addition, allegations of fraud, involving alterations in the technical descriptions used as basis of the survey, were raised by petitioner. The question of whether or not the trial court committed an error in judgment insofar as it upheld the accuracy of the survey report in light of petitioner’s allegations can be resolved only by way of ordinary appeal.

Therefore, the more appropriate remedy is an ordinary appeal instead of a petition for certiorari, contrary to the stance of private respondent. Raised by petitioner is the factual issue of discrepancy or alterations in the lot data computations used as basis for the survey. This calls for a review of the case records.

In adjudging the plausibility of an explanation, a court shall likewise consider the importance of the subject matter of the case or the issues involved therein, and the prima facie merit of the pleading sought to be expunged for violation of Section 11.20 The basis of allowing the appellate review of the trial court’s order approving the survey is to afford petitioner the opportunity to prove her claim that she bears the risk of being illegally deprived of a property belonging to her. 

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