493 Phil. 862
CALLEJO, SR., J.:
WHEREFORE, premises considered, it is respectfully prayed of this Honorable Court, that a writ of possession be issued, commanding the Ex-Officio Sheriff of this Court and/or of his deputies to place the petitioner and/or its authorized representative in possession of that parcels of land covered by TCT No. NT-196197 with an area of 337 square meters, more or less, of the Registry of Deeds for the Province of Nueva Ecija, and TCT No. NT-187791 with an area of 345 square meters, more or less, the Registry of Deeds for the Province of Nueva Ecija, including all the improvements erected thereon and eject therefrom all adverse occupants, more particularly Sps. Ruben & Inocencia Santiago and their privies and/or other persons claiming under him/her upon the filing of [the] prescribed fees or such other amounts that may be deemed reasonable by this Court.Although aware of the said petition, the petitioner spouses failed to file their comment thereon. Instead, they requested the respondent to give them more time to repurchase their properties.
Petitioner prays for such other remedies just and equitable under the premises.[1]
… [T]he court a quo committed grave abuse of discretion when it issued the Order dated 01 September 2000 granting respondent Rural Bank’s petition for the issuance of writ of possession “without any evidence being marked and formally offered in support of the petition.”[4]On February 5, 2001, the CA rendered judgment[5] dismissing the petition for lack of merit. It, likewise, denied the petitioners’ motion for reconsideration of the decision on April 6, 2001.
NOTWITHSTANDING ITS FINDING THAT THERE WAS INDEED NO EVIDENCE (WHETHER TESTIMONIAL OR DOCUMENTARY) SUBMITTED, MARKED, AND OFFERED BY PRIVATE RESPONDENT TO SUPPORT ITS PETITION IN THE COURT A QUO, [THE] COURT OF APPEALS UPHELD THE VALIDITY OF THE ASSAILED ORDERS.[6]The petitioners aver that the respondent failed to formally offer any documentary and testimonial evidence to support its petition for a writ of possession; hence, the RTC committed grave abuse of its discretion amounting to excess or lack of jurisdiction in granting the same. The petitioners assert that, unless documentary and testimonial evidence are offered in evidence and admitted by the trial court, the same should not be considered by it in resolving the petition. Besides, the assailed Order of the RTC does not conform to Section 1, Rule 36 of the Revised Rules of Court which requires that a final order must state clearly and distinctly the facts and the law on which it is based.
Furthermore, foreclosure proceedings has in its favor the presumption of regularity, it is for the petitioners to offer evidence to dispute that presumption to nullify the right created by the said foreclosure proceedings. Contrary to the claim of petitioners, a petition for issuance of writ of possession is not an action to deprive a person of his property, instead, it is an action wherein the Court intervenes primarily to aid in effecting the delivery of a property to its rightful owner. As correctly pointed out by the Court of Appeals in its assailed Decision, there is no law or procedure making the practice of making and formally offering documentary evidence in a petition for issuance of writ mandatory. The ex parte nature of the petition makes said practice unnecessary. In fact, it had been repeatedly held by the Honorable Supreme Court that issuance of writ of possession to a purchaser in an extrajudicial foreclosure is merely a ministerial function of the Court which lead us to the inference that issuance of writ of possession in such cases does not constitute exercise of discretion. Therefore, the same not being subject to court’s discretion, there can be no grave abuse of discretion to speak of.[7]The petition is denied for lack of merit.
Sec. 8. Setting aside of sale and writ of possession. – 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 hereof, 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 section fourteen of Act Numbered Four hundred and ninety-six; but the order of possession shall continue in effect during the pendency of the appeal.[9]The general rule is that for a writ of certiorari to issue, the petitioners must establish that they had no remedy of appeal or any plain, adequate and speedy remedy in the ordinary course of law. Appeal and certiorari are mutually exclusive. In the present case, the petitioners had the right to file a petition to set aside the sale and writ of possession issued by the court and to appeal from an adverse ruling. The petitioners failed to file the said petition and opted to file their petition for certiorari in the CA. Hence, they were barred from filing a petition for certiorari from the assailed order of the trial court and the writ of possession issued by it.
Sec. 7. Possession during redemption period. – In any sale made under the provisions of this Act, the purchaser may petition the Court of First Instance 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. Such petition shall be made under oath and filed in [the] form of an ex parte motion in the registration or cadastral proceedings if the property is registered, or in special proceedings in the case of property registered under the Mortgage Law or under section one hundred and ninety-four of the Administrative Code, or of any other real property encumbered with a mortgage duly registered in the office of any register of deeds in accordance with any existing law, and in each case the clerk of court shall, upon the filing of such petition, collect the fees specified in paragraph eleven of section one hundred and fourteen of Act Numbered Four hundred and ninety-six, as amended by Act Numbered Twenty-eight hundred and sixty-six, and the court shall, upon approval of the bond, order that a writ of possession issue, addressed to the sheriff of the province in which the property is situated, who shall execute said order immediately.The law does not require that a petition for a writ of possession may be granted only after documentary and testimonial evidence shall have been offered to and admitted by the court. As long as the verified petition states the facts sufficient to entitle the petitioner to the relief requested, the court shall issue the writ prayed for.[13] The petitioners need not offer any documentary and testimonial evidence for the court to grant the petition.
ATTY. ORTALEZA:The petitioners reneged on their promise and failed to repurchase the properties despite the lapse of two months. Thus, on September 1, 2000, the trial court resolved the petition and granted the same.
For the Petitioner, Your Honor, we are ready.
ATTY. PUNZALAN:
For the Spouses Ruben and Inocencia Santiago, Your Honor.
ATTY. ORTALEZA:
Your Honor, this petition had been set for several times, and we are praying that said petition being an ex parte be given due course by the Honorable Court since it was filed several months ago, and nothing was done since then.
ATTY. PUNZALAN:
Your Honor, we are requesting the Honorable Court that the Spouses Santiago be given ample time to raise the money for the re-purchase of the property. May we be given a period of two months, Your Honor.
ATTY. ORTALEZA:
Your Honor, we request that the ex parte petition be submitted for resolution considering that it is almost three months since the filing of this petition. The bank is open for negotiation, Your Honor. The Spouses could talk with the bank so that the said property [may] be redeemed by them with, of course, the bank['s] terms.
ATTY. PUNZALAN:
With that, Your Honor, we will submit to the Court’s ruling.
COURT:
Alright.
The ex parte petition for the issuance of the writ of possession is submitted for the resolution of this Court.[14]
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 over 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, 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.[18]IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. Costs against the petitioners.