Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-52823 November 2, 1982

PHILIPPINE NATIONAL BANK, petitioner,
vs.
Hon. MIDPANTAO ADIL, in his capacity as Presiding Judge of the CFI Iloilo, Branch II, and the HEIRS
OF THE LATE TEODORO MELLIZA Composed of ANGELINA LOBATON VDA. DE MELLIZA, etc.,
ROSEMARIE CHANG, RAYMUNDO TEODORO MELLIZA, JR., MARILYN MELLIZA, JOSE TEODORO
MELLIZA, et al., respondents.

Juan L. Diaz, Ramon F. Aviado and Isidro F. Real, Jr., for petitioner.

Eugenio O. Original for respondents.

DE CASTRO, J:

This is a special civil action for certiorari which seeks to annul the several injunctive orders issued by
respondent judge, and praying that, instead, the writ of possession issued in favor of petitioner, as
purchaser in the foreclosure sale, dated April 20, 1979, be immediately enforced.

It appears that on 'August 2, 1974, respondent Angelina Lobaton Melliza, for herself and as judicial
administratrix of the estate of Teodoro Uy Melliza, obtained a loan from petitioner in the amount of
P80,000.00 which was secured by a mortgage over two parcels of land covered by TCT Nos. 8266
and T-8267, For failure of said respondent to pay the loan on maturity, the mortgage was
foreclosed extrajudicially on February 16, 1976 at which foreclosure sale, petitioner purchased the
properties for P97,923.73. The properties were not redeemed within the period, hence the title over
the same were consolidated in the name of petitioner, and consequently TCT .Nos. T-50422 and T-
50423 were issued in its name on June 26, 1978.

On April 19, 1979, petitioner filed an ex-parte petition for issuance of a writ of possession before the
Court of First Instance of Iloilo, Branch II, which was granted by an order dated April 20, 1979. Upon
issuance of the writ, the Deputy Sheriff served the same upon private respondents, but the latter
requested for a grace period of seven (7) days to vacate the premises in question to which the
Sheriff agreed. On May 8, 1979, the Sheriff returned to the premises in question and finding that
private respondents are still staying in the premises and had not complied with the writ of
possession, immediately ordered their ejectment. At around one o'clock in the afternoon, before
the ejectment was completed, the Sheriff received an order dated May 8, 1979, issued motu
proprio by respondent judge, suspending the implementation of the writ of possession for
"humanitarian reasons" for a period of fifteen (15) days. Before the expiration of the fifteen (15)
day period, private respondents filed a complaint dated May 14, 1979 for the annulment of the
extrajudicial foreclosure, writ of possession and consolidation of ownership on ground that the
properties were foreclosed without personal notice to any of the private respondents. The
complaint was docketed as Civil Case No. 12894 and was assigned to the Court of First Instance
of Iloilo, Branch V. Upon motion of private respondents "to consolidate the trial of the two cases,"
the Presiding Judge of said Branch, in an order dated May 24, 1979, transferred the case of
Branch II, presided by respondent judge.

In the proceeding for the writ of possession, private respondents filed a motion for reconsideration
of the order granting the writ of possession, while petitioner filed a motion to declare private
respondents in contempt for refusal to vacate the premises, which motions were ordered by
respondent judge held in abeyance pending the resolution of the prejudicial question raised by
private respondents in Civil Case No. 12894.
On June 1, 1979, respondent judge, acting on private respondents' prayer for injunction, issued an
order restraining petitioner from disturbing the status quo, and on July 5, 1979, respondent judge
issued an order granting the writ of preliminary injunction.

Subsequently, petitioner filed the following: 1) Motion to Require Plaintiff to Deposit Income/Fruits
of the Disputed Property dated July 6, 1979; 2) Motion for Reconsideration of the order of July 5,
1979 dated July 17, 1979; and 3) Motion to Dismiss, the Complaint dated August 2, 1979. The first
two motions were denied by, respondent judge on August 13, 1979, and the last motion, on
November 22, 1979.

As could readily be seen, the main question is whether or not respondent judge grave abused his
discretion, amounting to lack of jurisdiction. in issuing the orders dated May 8, 1979, June 1, 1979,
July 5, 1979 and August 13, 1979 all of which, in effect, enjoined the enforcement of the writ of
possession. The petitioner sustains the affirmative, contending that since pursuant to De los
Angeles vs. Court of Appeals, et al. 1 citing De Gracia vs. San Jose, 94 Phil. 675, it is ministerial
upon the court to issue a writ of possession in favor of the purchaser in a foreclosure sale of a
mortgaged property, it follows that the execution of the writ of possession cannot be suspended,
much less, restrained by respondent judge. It also contends that, as purchaser, it becomes the
owner of the property entitled to jus possidendi as provided in Article 428 of the Civil Code.

It is, however, claimed by private respondents that respondent judge, contrary to petitioner's
submission, acted within his authority, alleging that pursuant to Section 5 of Rule 135 of the Rules of
Court, the court has inherent power to "amend and control (the court's) processes and order so as
to make them conformable to law and justice." They further claimed that the case cited by
petitioner is not applicable because in the instant case the writ has already been issued. Petition
should be granted.

Section 4 of P.D. No. 385 "requiring governmental financial institutions to foreclosure mandatorily
all loans with arrearages, including interest and charges amounting to at least 20 % of the total
outstanding obligations," provides:

Section 4. As a result of foreclosure or any other legal proceedings wherein the properties of the
debtor which are foreclosed, attached, or levied upon in satisfaction of a judgment are sold to a
government financial institution, the said properties shall be placed in the possession and control
of the financial institution concerned, with the assistance of the Armed Forces of the Philippines
whenever necessary. The Petition for Writ of Possession shall be acted upon by the court within
fifteen (15) days from the date of filing.

Pursuant to the above provision, it is mandatory for the court to place the government financial
institution, which petitioner is, in the possession and control of the property. As stated, the said
decree was enacted "in order to effect the early collection of delinquent loans from government
financial institutions and enable them to continue effectively financing the development needs of
the country" without being hampered by actions brought to the courts by borrowers.

Also, Section 6 of Act No. 3135, as amended by Act 4118, the law that regulates the methods
affecting extrajudicial foreclosure of mortgage provides that in cases in which an extrajudicial
sale is made, "redemption shall be governed by the provisions of sections four hundred and sixty-
four to four hundred and sixty-six, inclusive, of the Code of Civil Procedure insofar as these are not
inconsistent with the provisions of this Act." (Sections 464-466 of the Code of Civil Procedure were
superseded by Sections 25-27 and Section 31 of Rule 39 of the Rules of Court which in turn were
replaced by Sections 29 to 31 and Section 35 of Rule 39 of the Revised Rules of Court. 2 Section 35
which is one of the specific provisions applicable to the case at bar provides that "if no
redemption be made within twelve (12) months after the sale, the purchaser, or his assignee, is
entitled to a conveyance and possession of property. ... . The possession of the property shall be
given to the purchaser or last redemptioner by the officer unless a third party is actually holding
the property adversely to the judgment debtor."
The rule, therefore, is that after the redemption period has expired, the purchaser of the property
has the right to be placed in possession thereof. Accordingly, it is the inescapable duty of the
Sheriff to enforce the writ of possession, especially, as in this case, a new title has already been
issued in the name of the purchaser, In fact, under Section 7 of the said Act 3135, upon which the
de los Angeles and de Gracia cases were based, even before the redemption period, it is
ministerial upon the court to issue a writ of possession in favor of a purchaser, provided that a
proper motion has been filed, a bond approved, and no third person is involved.

The right of the purchaser to be placed in the possession of the property is bolstered by Section 8
of the aforecited Act which provides that if the judge finds the complaint assailing the legality of
the foreclosure sale justified, it shall not transfer the possession of the property, even on appeal,
but will only proceed against the bond posted by the purchaser. Section 8 reads:

The debtor may, in the proceedings in which possession was requested; but not later than thirty
days after the purchaser was given possession, petition that the sale be set aside and the writ of
possession cancelled, specifying the damages suffered by him, because the mortgage was not
violated or the sale was not made in accordance with the provisions thereof, and the court shall
take cognizance of this petition in accordance with the summary procedure provided for in
section one hundred and twelve of Act Numbered Four Hundred and Ninety-Six, and if it finds the
complaint of the debtor justified, it shall dispose in his favor of all or part of the bond furnished by
the person who obtained possession. Either of the parties may appeal from the order of the judge
in accordance with sections fourteen of act numbered Four Hundred and Ninety-Six.

In the case at bar, the writ of possession was issued but its enforcement was suspended by the
grace period given by the Sheriff who has no authority to do so, and later by the order of the
judge on a very dubious ground as "humanitarian reason." If the applicable laws clearly allow the
purchaser to have possession of the property foreclosed and mandate the court to give effect to
such right, it would be a gross error for the judge to suspend the implementation of the writ of
possession, which, as shown, should issue as a matter of course. We are of the opinion that once
the writ of possession has been issued, the Court has no alternative but to enforce the writ without
delay, especially as in this case, no motion for the suspension of the enforcement was filed.

The right of the petitioner to the possession of the property is clearly unassailable. It is founded on
its right of ownership. As the purchaser of the properties in the foreclosure sale, and to which the
respective titles thereto have already been issued, petitioner's right o-,,er the property has
become absolute, vesting upon him the right of possession over an enjoyment of the property
which the Court must aid in effecting its delivery. After such delivery, the purchaser becomes the
absolute owner of the property. As We said , in Tan Soo Huat vs. Ongwico, 3 the deed of
conveyance entitled the purchaser to have and to hold the purchased property, this means, that
the purchaser is entitled to go immediately upon the real property, and that it is the Sheriff's
inescapable duty to place him in such possession.

Respondents cannot claim that the writ of possession was suspended under the authority set forth
in Rule 1135 of the Rules of Court. To invoke the power granted therein, the court must act within
the law and with justice. When the reason given by the judge in issuing the order of suspension
was not specified in the order, but stated only in general term, as "humanitarian reasons," the
Court did not act within the bounds of the law. The order was, furthermore, issued motu proprio
and without the petitioner being afforded the right to present its side. We cannot give Our
approval to the actuation of respondent judge, for an order suspending the implementation of an
earlier order is like an injunction which must be issued always with circumspection, and upon
proper motion of the party concerned.

As it is, the suspension order has a far-reaching effect. It enabled private respondents to withhold
the possession from petitioner and file the complaint where an injunction was sought. Had not
respondent judge issued such order, petitioner could have already taken possession of the
property, thereby acquiring an absolute ownership over the property, and injunction could no
longer have been issued. A prohibitory injunction cannot be issued when the act sought to be
enjoined has already been committed. 4 Neither can a mandatory injunction issue, for it is a well-
settled rule that injunction will not lie to take the property out of control of the party in possession.
5

The orders of the judge enjoining the enforcement of the writ of possession are vulnerable to
attack. Firstly, the right of private respondents to injunctive order is, at least, doubtful, and it is a
settled rule that to be entitled to the injunction, the applicant's right or title must be clear and
unquestioned.

In the instant case, the ground relied upon by private respondents is not indubitable, while the
foreclosure proceeding has in its favor the presumption of regularity. And secondly, P.D. No. 385,
as aforestated, makes it mandatory for the court to place a government financial institution in
possession of the property. To enjoin PTB from taking possession of the property would be to render
nugatory the provisions of said decree, particularly Section 2 thereof:

Section 2. No restraining order, temporary or permanent in. junction shall be issued by the court
against any government financial institution in any action taken by such institution in compliance
with the mandatory foreclosure provided in Section 1 hereof, whether such restraining order,
temporary or permanent injunction is sought by the borrower(s) or any third party or parties,
except after due hearing in which it is established by the borrower and admitted by the
government financial institution concerned that twenty percent (20%) of the outstanding
arrearages has been paid after the firing of foreclosure proceedings.

In case a restraining order or injunction is issued the borrower shall nevertheless be legally
obligated to liquidate the remaining balance of the arrearages, paying ten percent (10%) of the
arrearages outstanding as of the time of foreclosure, plus interest and other charges, on every
succeeding thirtieth (30th) day after the issuance of such restraining order or injunction until the
entire arrearages have been liquidated. These shall be in addition to the payment of
amortizations currently maturing. The restraining order or injunction shall automatically be
dissolved should the borrower fail to make any of the above-mentioned payments on due dates,
and no restraining order or injunction shall be issued thereafter. This shall be without prejudice to
the exercise by the government financial institutions of such rights and/or remedies available to
them under their respective charters and their respective contracts with their debtors, nor should
this provision be construed as restricting the government financial institutions concerned from
approving, solely at its own discretion, any restructuring, recapitalization, or any other
arrangement that would place the entire account on a current basis, provided, however, that at
least twenty percent (20%) of the arrearages outstanding at the time of the foreclosure is paid.

All restraining orders and injunctions existing as of the date of this Decree on foreclosure
proceedings filed by said government financial institutions shall be considered lifted unless finally
resolved by the court within sixty (60) days from date hereof.

WHEREFORE, judgment is hereby rendered annulling and setting aside all the injunctive orders
issued by respondent judge dated May 8, 1979, June 1, 1979, July 5, 1979 and August 13, 1979;
and ordering respondent judge to place petitioner in possession of the purchased property
without delay. Without cost.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-67588 June 20, 1988

ALEJANDRO MIRASOL, and LILIA E. MIRASOL (spouses), petitioners,

vs.
INTERMEDIATE APPELLATE COURT, PHILIPPINE NATIONAL BANK, Bacolod Branch, and THE
PROVINCIAL SHERIFF OF NEGROS OCCIDENTAL, respondents.

Sixto P. Demaisip for petitioners.

Diaz, Del Rosario, Basa and Lazo for respondent Philippine National Bank.

GUTIERREZ, JR., J.:

This is a petition for review of the decision of the Intermediate Appellate Court affirming an order
of the Regional Trial Court, Sixth Judicial Region, Branch XI, Silay City, Negros Occidental, directing
the issuance of a writ of possession in favor of respondent Philippine National Bank (PNB).

On October 22, 1971, the petitioners and PNB entered into a contract of real estate mortgage as
security for a loan to finance the agricultural sugar crop loans of the petitioners.

In the crop years of 1973-74 and 1974-75 the price of sugar rose to $90.45 per picul. In terms of
pesos at the then average currency rate of exchange which was P7.50 to $1.00, the price of sugar
per picul amounted to P678.35.

The PNB liquidated the planters' export sugar at P180.00 per picul only. The petitioners agitated for
an accounting and demanded from the bank the balance of their export sugar's price, the
difference between the liquidated price of P180.00 and the price the bank sold at world markets
minus expenses.

Receiving no definite commitment from the bank, the petitioners filed on August 15,1979, a
complaint, which was later amended, before the then Court of First Instance of Negros
Occidental for accounting, specific performance, damages, and other reliefs. To this amended
complaint, the bank in its answer set up its defense that the petitioners have no cause of action;
the amended complaint is not brought against the real party in interest, which should have been
the Philippine Government; and that the petitioners are estopped from denying the validity of the
appraisal of the properties covered by the dacion en pago which they voluntarily signed.

Meanwhile, the petitioners did not pay their agricultural sugar crop loans for 1976-77 because of
the above development. Consequently, the bank extra-judicially foreclosed the real estate
mortgage and purchased the property at public auction on August 10, 1982, as the sole bidder. A
certificate of sale was then issued by the Sheriff.

Claiming that they came to know of the sale at public auction only after it was consummated,
the petitioners filed on October 4, 1982, a complaint for annulment of the real estate mortgage
against the bank with the then Court of First Instance of Iloilo alleging that the real estate
mortgage on the basis of which the sale was made had already prescribed; the obligation
contained in it was fully paid for; and the claim is barred for not having been set up in a
counterclaim.

On January 10, 1983, the bank filed an ex-parte petition for writ of possession with the Court of First
Instance of Negros Occidental contending that it is entitled to the writ prayed for as a matter of
right. After hearing, the trial court issued an order dated March 14, 1983 granting the ex-parte
motion and directing the issuance of the writ of possession. The appellate court sustained this
order.

The issue raised in this case is whether or not the pendency of the civil case for annulment of the
real estate mortgage on the subject property of the petitioners to the PNB and which the latter
had already extra-judicially foreclosed, constitutes a bar or a legal impediment to the
enforcement of the writ of possession issued by the trial court in favor of the bank.
The appellate court sustained the lower court's order granting the ex-parte motion for the
issuance of a writ of possession in favor of the private respondent bank in line with the case of
Philippine National Bank v. Adil, (118 SCRA 110, 114-115) wherein we stated:

... that since pursuant to De Los Angeles v. Court of Appeals, et al. 60 SCRA 116, citing De Gracia
v. San Jose, 94 Phil. 675, it is ministerial upon the court to issue a writ of possession in favor of the
purchaser in a foreclosure sale of a mortgaged property, it follows that the execution of the writ of
possession, cannot be suspended, much less, restrained by respondent Judge. It also contends
that, as purchaser, it becomes the owner of the property entitled to juspossidendi as provided in
Article 428 of the Civil Code.

xxx xxx xxx

Section 4 of P.D. No. 385 requiring governmental financial institutions to foreclose mandatorily all
loans with arrearages, including interest and charges amounting to at least 20% of the total
outstanding obligations," provides:

Section 4. As a result of foreclosure or any other legal proceeding wherein the properties of the
debtor which are foreclosed, attached, or levied upon in satisfaction of a judgment are sold to a
government financial institution, the said properties shall be placed in the possession and control
of the financial institution concerned, with the assistance of the Armed Forces of the Philippines
whenever necessary. The Petition for Writ of Possession shall be acted upon by the court within
fifteen (15) days from the date of filing.

Pursuant to the above provision, it is mandatory for the court to place the government financial
institution, which petitioner is, in the possession and control of the property. As stated, the said
decree was enacted "in order to effect the early collection of delinquent loans from government
financial institutions and enable them to continue effectively financing the development needs of
the country" without being hampered by actions brought to the court by borrowers.

These principles are reiterated in the case of Banco Filipino Savings and Mortgage Bank v.
Intermediate Appellate Court, (142 SCRA 44) and Banco Filipino Savings & Mortgage Bank v.
Pardo (151 SCRA 481).

The petitioners, however, contend that the Philippine National Bank v. Adil case is not applicable
to the case at bar because the cited case presupposes that the real estate mortgage is valid.
They argue that since the real estate mortgage is under attack it cannot be invoked to serve as
basis for any fruitful action thereon and if the real estate mortgage itself is void, it follows that the
extra-judicial sale and all other pertinent proceedings pursuant thereto, must also be void.
Therefore, the writ of possession should not have been issued.

These arguments are not well-taken.

An examination of the petitioners' complaint captioned as Annulment and other Reliefs with
Prayer for Interlocutory Order/s in the pending civil case (Civil Case No. 14665) reveals that they
ask for the setting aside of the real estate mortgage on the following grounds: (1) that the action
on the real estate mortgage has already prescribed; and (2) that the real estate mortgage has
become innocuous lifeless considering that (a) the indebtedness it covered was more than paid
for had defendant PNB rendered an accounting and liquidated in full, (b) it was already barred,
not having been set off as a counterclaim and (c) assuming that it can be so maintained, action
thereon has prescribed.

Hence, the petitioners do not question the validity of the real estate mortgage at its inception. Not
one of their defenses can be considered as ground for declaring the contract void under the law.
Their defenses consist of circumstances after the execution of the real estate mortgage. Their
defenses of prescription and that the mortgage has become innocuous and lifeless" clearly show
that the petitioners are attacking the extra-judicial foreclosure sale on the ground that there is no
longer any basis for it. In effect the petitioners admit the validity and existence of the real estate
mortgage but are resisting the extra-judicial foreclosure of mortgage because according to them
the action has already prescribed and that the mortgage has become innocuous and lifeless.

The pending civil case has for its purpose the annulment of the extra-judicial foreclosure of
mortgage based on the aforementioned grounds and not the annulment of a void real estate
mortgage. The real estate mortgage is challenged only in relation to its extra-judicial foreclosure.
We cannot act one way or another on that case.

Consequently, Philippine National Bank v. Adil and other related cases are applicable.

The petitioners are not without remedies. Any question regarding the regularity and validity of the
sale and the setting aside of the writ can be threshed out in the still pending civil case. Such
question may not be raised, however, as a justification for opposing the issuance of the writ of
possession, since, given the circumstances provided by law, the proceeding for this is ex parte (De
Gracia v. San Jose, et al., supra). The law may sometimes be harsh in its application. The
petitioners, however, have failed to show why so many established precedents, not to mention
the provisions of specific law, should be set aside or not applied in their case. Their recourse is to
speed up the resolution of the main case.

WHEREFORE, the petition is hereby DISMISSED. The questioned decision of the then Intermediate
Appellate Court is AFFIRMED.

SO ORDERED.

SECOND DIVISION
[G.R. No. 141365. November 27, 2002]
SPOUSES FELIPE YULIENCO and FLORA YULIENCO, petitioners, vs. HON. COURT OF APPEALS (4TH
DIVISION); HON. LUCAS P. BERSAMIN in his official capacity as Presiding Judge of the Regional Trial
Court, Branch 96, NCJR, Quezon City; DEPUTY SHERIFF JOSE G. MARTINEZ of Branch 96, RTC,
Quezon City; and ADVANCE CAPITAL CORPORATION, respondents.
DECISION
QUISUMBING, J.:

Petitioners seek to annul and set aside the decision[1] dated December 20, 1999 of the Court of
Appeals, which (1) affirmed the order of the Regional Trial Court of Quezon City, Branch 96, in
Land Registration Case No. Q-11564 (99) granting a writ of possession to private respondent
Advance Capital Corporation; and (2) lifted the temporary restraining order issued by the CA on
September 17, 1999.

The records show that petitioner spouses Felipe and Flora Yulienco were the owners of a
residential house and lot located at Nos. 136-138 Biak-na-Bato Street, Sta. Mesa Heights, Quezon
City, covered by Transfer Certificate of Title No. RT-2572 (57609).[2] On June 29, 1990, petitioners
obtained a loan of P20,000,000 from private respondent Advance Capital Corporation (ACC) with
interest at 24 percent per annum and evidenced by a promissory note. To secure the loan, deeds
of real estate mortgage were executed on their properties in Makati City, Benguet, and Quezon
City. When petitioners failed to pay the loan in full, ACC filed on July 2, 1993 a petition for
extrajudicial foreclosures of the properties with the Ex-Officio Sheriff of Quezon City, pursuant to
the authority provided in the deed of real estate mortgage. Auction sale of the properties was
scheduled on July 30, 1993 and notice of the sale was published in the Times Record on July 7, 14,
and 21, 1993.[3]

To forestall the foreclosure of their properties, petitioners filed on July 26, 1993 a petition for
injunction, reformation, and damages with prayer for temporary restraining order and/or
preliminary injunction against ACC with the Regional Trial Court of Makati City, Branch 61. In their
complaint, petitioners questioned the validity of the promissory notes and real estate mortgages.
They alleged that their true agreement with ACC was to pay the loan from the proceeds of the
sale of their shares of stock in PHESCO which were then subject of a pending case in the Securities
and Exchange Commission. They also assailed the Notice of Sheriffs Sale in Makati and Quezon
City because it was not published in newspapers of general circulation in Metro Manila.

On July 28, 1993, or two days before the scheduled sale, the Makati RTC issued an order[4]
enjoining private respondent and the sheriffs of Makati, Quezon City, and Benguet from
proceeding with the foreclosure of petitioners properties. The auction sale of petitioners Quezon
City property scheduled on July 30, 1993 was likewise cancelled.

On August 30, 1993, ACC filed with the Office of the Clerk of Court and Ex-Officio Sheriff of
Quezon City a letter-request to proceed with the auction sale of petitioners Quezon City property
since, by that time, the 20-day effectivity period of the temporary restraining order issued by the
Makati RTC had expired[5] and, therefore, there was no more legal impediment to the sale. On
the same day, the Sheriff of Quezon City prepared and issued a Second Notice of Sheriffs Sale of
the Quezon City property, scheduling the sale on September 27, 1993. The notice was published in
the Times Record on September 1, 8, and 15 1993.[6]

In the meantime, the RTC of Makati issued on September 20, 1993 an order granting petitioners
prayer for preliminary injunction as to the foreclosure of their property in Makati City, but not as to
the Quezon City and Benguet properties since under Section 21 of Batas Pambansa Bilang 129,
the court does not have jurisdiction to enforce a writ of preliminary injunction outside its territorial
jurisdiction.

The public auction was held on September 27, 1993 and petitioners Quezon City property was
sold to ACC as the highest bidder.[7] On the same date, the Sheriffs Certificate of Sale was
annotated on the TCT.[8] A year later, petitioners filed a second amended and supplemental
petition in the case pending before the RTC of Makati. On September 26, 1994, the RTC issued a
temporary restraining order enjoining ACC from exercising its right of consolidation of ownership of
the foreclosed property in Quezon City.[9] Then on October 13, 1994, the RTC, again citing Section
21 of Batas Pambansa Bilang 129, finally denied petitioners prayer for preliminary injunction to
enjoin ACC from consolidating title.[10]

Thereafter, when petitioners failed to redeem the foreclosed property, ACC caused the
consolidation of its ownership and paid the necessary taxes with the Bureau of Internal Revenue
to effect transfer of the title to its name.[11] Accordingly, the Register of Deeds of Quezon City
cancelled TCT No. RT-2572 (57609) and issued TCT No. 119740 in ACCs name.[12] Tax declarations
over the subject property were likewise transferred in the name of ACC after it paid real estate
taxes.[13] From then on, private respondent ACC has been paying real taxes on the property.[14]

Petitioners continued to occupy the house and lot over the property so, in a letter dated May 3,
1999, ACC made a formal and final demand on petitioners to vacate the subject house and lot
within five days from receipt of the letter. ACC also demanded P1,080,000 corresponding to rental
arrearages from October 1994 to the date of the letter, at P20,000 per month.[15] ACC likewise
filed with the RTC of Quezon City, Branch 96, a petition for the issuance of a writ of possession over
the subject property. The case was docketed as Land Registration Case No. Q-11564 (99).[16]

At the hearing of June 25, 1999, public respondent Hon. Lucas Bersamin, the presiding judge of
the RTC of Quezon City, Branch 96, allowed ACC to present its evidence ex parte without
prejudice to any comment that may be filed by petitioners.

In their comment below, petitioners alleged, among others, that it would be improper for the
court to issue a writ of possession pending the outcome of Special Civil Case No. 93-2521 before
Branch 61 of the Makati RTC for injunction, reformation, and damages assailing the validity of the
loan and the mortgage.[17]

On September 3, 1999, the RTC of Quezon City granted the petition for writ of possession,
disposing as follows:

ACCORDINGLY, premises considered, the instant petition is hereby GRANTED. Let a writ of
possession be issued over the property covered by Transfer Certificate of Title No. 119740 of the
Registry of Deeds of Quezon City and located at 136-138 Biak-na-Bato, Sta. Mesa Heights, Quezon
City.

SO ORDERED.[18]

Petitioners motion for reconsideration was denied. To annul the trial courts decision dated
September 3, 1999, petitioners elevated the case to the Court of Appeals via certiorari and
prohibition with a prayer for temporary restraining order and/or writ of preliminary injunction.[19] In
a resolution dated September 17, 1999, the CA issued a temporary restraining order enjoining the
implementation of the writ of possession issued by the RTC of Quezon City.[20] Then on December
20, 1999, respondent Court of Appeals denied the petition for certiorari.[21] The appellate court
confined its discussion to the validity of the trial courts issuance of the writ of possession, finding the
same neither a capricious nor a whimsical exercise of judgment that could amount to grave
abuse of discretion. In the same decision, the CA likewise lifted the temporary restraining order it
issued on September 17, 1999.[22]

Hence, the instant petition under Rule 45 of the Rules of Court, anchored on the following
averments:

A.

THE RESPONDENT COURT HAS RENDERED THE DECISION DATED DECEMBER 20, 1999 (ANNEX B) IN
DISREGARD OF THE FRAUD COMMITTED BY RESPONDENT ACC PROVEN BY FACTS NOT DENIED BY
RESPONDENT ACC WHICH CLEARLY VIOLATE THE CONSTITUTIONAL RIGHT TO DUE PROCESS OF
PETITIONERS AND WILL FRAUDULENTLY ENRICH RESPONDENT ACC THRU ACTUAL AND ILLEGAL
CONFISCATION OF THE PROPERTIES OF PETITIONERS IN AN ILLEGAL AND FRAUDULENT MANNER,
THUS CONSTITUTING A DEPARTURE FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL
PROCEEDINGS OR SO FAR SANCTIONED SUCH DEPARTURE BY A LOWER COURT, AS TO CALL FOR
AN EXERCISE OF THE POWER OF SUPERVISION OF THIS HONORABLE COURT; and

B.

THE RESPONDENT JUDGE COURT HAS DECIDED IN ITS DECISION DATED DEC. 20, 1999 (ANNEX B)
QUESTIONS OF SUBSTANCE NOT THERETOFORE DETERMINED BY THIS HONORABLE COURT, OR HAS
DECIDED IT IN A WAY NOT IN ACCORD WITH LAW AND LOGIC AND/OR WITH THE APPLICABLE
DECISIONS OF THIS HONORABLE COURT.[23]

At issue is whether the Court of Appeals committed reversible error in affirming the RTC decision
granting the writ of possession to respondent corporation. To resolve this issue, we must also inquire
whether prohibition lies to enjoin the Regional Trial Court of Quezon City from issuing to ACC the
writ of possession over the property covered by TCT No. 119740 of the Quezon City Register of
Deeds.

Petitioners assail the jurisdiction of the Quezon City RTC in taking cognizance of the present case
on the ground that there is a pending case in the Makati RTC for injunction, reformation, and
damages impugning the validity of the promissory notes and mortgage contracts used as basis for
the foreclosure sale. They likewise lament that the grant of the writ and the displacement of
petitioners from their residence on the basis of fraud smacks of deprivation of property without
due process of law.

Petitioners contention cannot stand judicial muster. Act 3135, otherwise known as An Act to
Regulate the Sale of Property under Special Powers Inserted in or Annexed to Real Estate
Mortgages, mandates that jurisdiction over a petition for a writ of possession lies in the court of the
province, city, or municipality where the property subject thereof is situated. Section 7 of the said
Act is clear on this matter, thus:

SEC. 7. In any sale made under the provisions of this Act, the purchaser may petition the Court of
First Instance [now Regional Trial Court] of the province or place where the property or any part
thereof is situated, to give him possession thereof during the redemption period, furnishing bond in
an amount equivalent to the use of the property for a period of twelve months, to indemnify the
debtor in case it be shown that the sale was made without violating the mortgage or without
complying with the requirements of this Act.

Since the land subject of the controversy is located in Quezon City, the citys RTC should rightly
take cognizance of the case, to the exclusion of other courts.

Neither can this Court consider the pendency of Special Civil Case No. 93-2521 before Branch 61
of the Makati RTC a procedural obstacle. Said action for injunction, reformation, and damages
does not raise an issue that constitutes a prejudicial question in relation to the present case.

A prejudicial question is one that arises in a case the resolution of which is a logical antecedent of
the issue involved therein, and the cognizance of which pertains to another tribunal.[24] It
generally comes into play in a situation where a civil action and a criminal action are both
pending and there exists in the former an issue that must be preemptively resolved before the
criminal action may proceed, because howsoever the issue raised in the civil action is resolved
would be determinative juris et de jure of the guilt or innocence of the accused in the criminal
case.[25] The rationale behind the principle of prejudicial question is to avoid two conflicting
decisions.[26]
Here, Special Civil Case No. 93-2521 and the present one are both civil in nature and, therefore,
no prejudicial question can arise from the existence of the two actions. It taxes our imagination
how the questions raised in Special Civil Case No. 93-2521 would be determinative of Land
Registration Case No. Q-11564 (99). The basic issue in the former is whether the promissory note
and mortgage agreement executed between petitioners and private respondent ACC are valid.
In the latter case, the issue is whether respondent, armed with a TCT in its name, is entitled to a writ
of possession. Clearly, the two cases can proceed separately and take their own direction
independently of each other.

In the present case, petitioners cannot anchor their case on the purported interest they have, as
owners, over the land and the improvements thereon. They have been stripped of their rights over
the property when, as mortgagors, they failed to redeem it after foreclosure took place. A
mortgagor has only one year after registration of sale with the Register of Deeds within which to
redeem the foreclosed real estate.[27] After that one-year period, he loses all his interests over it.
This is in consonance with Section 78 of Republic Act 337, otherwise known as the General Banking
Act, which provides:

SEC. 78. In the event of foreclosure, whether judicially or extrajudicially, of any mortgage on real
estate which is security for any loan granted before the passage of this Act or under the provisions
of this Act, the mortgagor or debtor whose real property has been sold at public auction, judicially
or extrajudicially, for the full or partial payment of an obligation to any bank, banking, or credit
institution, within the purview of this Act, shall have the right, within one year after the sale of the
real estate as a result of the foreclosure of the respective mortgage, to redeem the property by
paying the amount fixed by the court in the order of execution (Emphasis supplied.)

Likewise, Section 6 of Act 3135 states:

SEC. 6. In all cases in which an extrajudicial sale is made under the special power hereinbefore
referred to, the debtor, his successors in interest or any judicial creditor or judgment creditor of
said debtor, or any person having a lien on the property subsequent to the mortgage or deed of
trust under which the property is sold, may redeem the same at any time within the term of one
year from and after the date of the sale; (Emphasis supplied.)

Well established is the rule that after the consolidation of title in the buyers name, for failure of the
mortgagor to redeem, the writ of possession becomes a matter of right.[28] Its issuance to a
purchaser in an extrajudicial foreclosure is merely a ministerial function.[29] The writ of possession
issues as a matter of course upon the filing of the proper motion and the approval of the
corresponding bond. The judge issuing the writ following these express provisions of law neither
exercises his official discretion nor judgment.[30] As such, the court granting the writ cannot be
charged with having acted without jurisdiction or with grave abuse of discretion.

Petitioners cite the 1987 case of Cometa vs. IAC,[31] to bolster their argument that a writ of
possession should not be granted in the light of a pending case for annulment of the foreclosure
sale wherein the properties were sold at an unusually low price. We note that petitioners reliance
thereon is as flawed as their citation thereof.[32] In said case, there was a pending action where
the validity of the levy and sale of the properties in question were directly put in issue, which is not
the case here. Special Civil Case No. 93-2521 pending before the Makati RTC for reformation of
instrument is not the pending case as contemplated in Cometa because (1) the sale and levy of
the property are not directly put in issue, and (2) the Makati RTC could not have taken
cognizance of the foreclosure proceedings of the Quezon City property for lack of jurisdiction. A
direct action for annulment of the foreclosure sale of the subject property should have been filed
in the RTC of Quezon City where the property is located.

More instructive is the 1997 case of Arcega vs. CA,[33] where we held that the purchaser in a
foreclosure sale is entitled to possession of the property:
Respondent banks right to possess the property is clear and is based on its right of ownership as a
purchaser of the properties in the foreclosure sale to whom title has been conveyed. Under
Section 7 of Act No. 3135 and Section 35 [now Section 33] of Rule 39, the purchaser in a
foreclosure sale is entitled to possession of the property. The bank in this case has a better right to
possess the subject property because of its title over the same. (Emphasis supplied.)

If only to stress the writs ministerial character, we have, in a case more recent than Cometa,
disallowed injunction prohibiting its issuance,[34] just as we have held that its issuance may not be
stayed by a pending action for annulment of mortgage or the foreclosure itself.[35]

Guided by the foregoing principles, until the foreclosure sale of the property in question is annulled
by a court of competent jurisdiction, petitioners are bereft of valid title and right to prevent the
issuance of a writ of possession to respondent corporation. Until then, it is the trial courts ministerial
function to grant the possessory writ to said corporation. No error could be attributed to the
respondent appellate court for affirming the trial courts order in favor of private respondent,
Advance Capital Corporation.

WHEREFORE, the instant petition is DENIED for lack of merit. The challenged decision of the Court
of Appeals dated December 20, 1999 in CA-G.R. SP No. 54949 is AFFIRMED. Costs against
petitioners.