585 Phil. 657
AUSTRIA-MARTINEZ, J.:
The petition fails for lack of merit. The CA committed no error.
- THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN UPHOLDING THE GRANT OF WRIT OF POSSESSION IN FAVOR OF RESPONDENT BANCO FILIPINO AGAINST THE SPOUSES ELIGIO AND MARCELINA MALLARI ON THE PROPERTY SUBJECT MATTER OF THIS CASE.
- THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN UPHOLDING THE DENIAL ORDER OF THE TRIAL COURT TO RECONSIDER THE ORDER DATED MAY 18, 2001, AND ORDERING THE DEPUTY SHERIFF TO IMPLEMENT THE WRIT OF POSSESSION DATED MAY 18, 2001.
- THE HONORABLE COURT OF APPEALS COMMITTED AN ERROR WHEN IT RULED THAT CERTIORARI WILL NOT LIE AS APPEAL IS THE APPROPRIATE REMEDY WHICH IS STILL AVAILABLE IN THE CASE.[3]
Certiorari as a special civil action is available only if the following essential requisites concur: (1) it must be directed against the tribunal, board or any officer exercising judicial or quasi-judicial functions; (2) the tribunal, board or officer must have acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law.Indeed, the Court in some instances has allowed a petition for certiorari to prosper notwithstanding the availability of an appeal, such as, (a) when public welfare and the advancement of public policy dictate it; (b) when the broader interest of justice so requires; (c) when the writs issued are null; and (d) when the questioned order amounts to an oppressive exercise of judicial authority."[6]
x x x x
x x x A remedy is considered plain, speedy and adequate if it will promptly relieve the petitioner from the injurious effects of the judgment or rule, order or resolution of the lower court or agency.[5] (Emphasis supplied)
SEC. 8. 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. (Emphasis supplied)The above procedure affords both parties the most expeditious way to resolve any conflict regarding the writ of possession alone.
x x x The issuance of a writ of possession to a purchaser in a public auction is a ministerial act. After the consolidation of title in the buyer's name for failure of the mortgagor to redeem the property, the writ of possession becomes a matter of right. Its issuance to a purchaser in an extrajudicial foreclosure sale is merely a ministerial function. The trial court has no discretion on this matter. Hence, any talk of discretion in connection with such issuance is misplaced.Again, in Saguan v. Philippine Bank of Communications,[14] the Court reiterated that:A clear line demarcates a discretionary act from a ministerial one. Thus:The distinction between a ministerial and discretionary act is well delineated. A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion or judgment.Clearly, the use of discretion and the performance of a ministerial act are mutually exclusive.
Where the court acts on a matter that is within its jurisdiction, grave abuse of discretion must be shown to nullify the act. In this case, since the issuance of the writ of possession did not involve an exercise of discretion, no abuse of discretion could have been committed by the trial court. Thus, the instant petition for certiorari has no leg to stand on.
The issue of nullity of the extrajudicial foreclosure sale was of no moment. It could not bar the issuance of the writ of possession. As a rule, any question regarding the validity of the mortgage or its foreclosure is not a legal ground for refusing the issuance of a writ of execution/ writ of possession.
The fact that no bond was posted by SBDB was also of no consequence. Since ownership of the property had already been consolidated in the name of the bank, there was nothing legally questionable in the issuance of the writ of possession even if no bond was posted. The posting of a bond as a condition for the issuance of the writ of possession becomes necessary only if it is applied for within one year from the registration of the sale with the register of deeds, i.e., during the redemption period inasmuch as ownership has not yet vested on the creditor-mortgagee. After the one-year period, however, the mortgagor loses all interest over it. The purchaser, who has a right to possession that extends after the expiration of the redemption period, becomes the absolute owner of the property when no redemption is made. Thus, the posting of a bond is no longer needed.[13] (Emphasis supplied)
x x x Consequently, the purchaser, who has a right to possession after the expiration of the redemption period, becomes the absolute owner of the property when no redemption is made. In this regard, the bond is no longer needed. The purchaser can demand possession at any time following the consolidation of ownership in his name and the issuance to him of a new TCT. After consolidation of title in the purchaser's name for failure of the mortgagor to redeem the property, the purchaser's right to possession ripens into the absolute right of a confirmed owner. At that point, the issuance of a writ of possession, upon proper application and proof of title, to a purchaser in an extrajudicial foreclosure sale becomes merely a ministerial function. Effectively, the court cannot exercise its discretion.From the foregoing, it is quite clear that petitioner's contention -- that the trial court acted with grave abuse of discretion in issuing the writ of possession despite the pendency between herein parties of an action for declaration of nullity of the extra-judicial foreclosure -- does not hold water.
Therefore, the issuance by the RTC of a writ of possession in favor of the respondent in this case is proper. We have consistently held that the duty of the trial court to grant a writ of possession in such instances is ministerial, and the court may not exercise discretion or judgment. x x x
We emphasize that the proceeding in a petition for a writ of possession is ex-parte and summary in nature. It is a judicial proceeding brought for the benefit of one party only and without need of notice to any person claiming an adverse interest. It is a proceeding wherein relief is granted even without giving the person against whom the relief is sought an opportunity to be heard. By its very nature, an ex-parte petition for issuance of a writ of possession is a non-litigious proceeding authorized under Act No. 3135, as amended.
Be that as it may, the debtor or mortgagor is not without recourse. x x x
x x x x
x x x a party may file a petition to set aside the foreclosure sale and to cancel the writ of possession in the same proceedings where the writ of possession was requested.[15]