760 PHIL. 766
PERALTA,* J.:
In her Comment/Opposition,[11] Pangilinan relied on Spouses Arquiza v. Court of Appeals,[12] Autocorp Group & Autographies, Inc. v. Court of Appeals,[13] Chailease Finance, Corp. v. Spouses Ma,[14] Sps. de Vera v. Hon. Agloro,[15] PNB v. Sanao Marketing Corp.,[16] and Sps. Yulienco v. Court of Appeals[17] insofar as these cases held that the trial court has the ministerial duty to issue a writ of possession, which cannot be stayed by an injunction or a pending action for annulment of the real estate mortgage or the extra-judicial foreclosure proceedings.x x x x x x x x x
3. On August 1, 2006, or prior to the filing of the above-entitled Petition for Writ of Possession, [Pangilinan] filed with the Regional Trial Court of Pasay City, Branch 108, a Petition for Cancellation of Adverse Claim which annotation was carried over to her title. Transfer Certificate of Title (TCT) No. 147777, from the previous title, TCT No. 135066, in the name of Third-Party Claimant's aunt and benefactor, the late ROSALINA P. PARDO x x x;
4. In response to the said Petition for Cancellation of Adverse Claim, Third-Party Claimant filed an Opposition and Motion to Dismiss x x x;
5. The said Opposition and Motion to Dismiss x x x states the following:
(a) [Third-Party Claimant] is the nephew and ward of the late ROSALINA P. PARDO x x x, who owned a certain parcel of land, with improvements thereon x x x as evidenced by Transfer Certificate of Title (TCT) No. 135066 of the Registry of Deeds of Pasay City x x x; (b) During her lifetime, or on May 15, 1999, PARDO executed a duly notarized deed of DONATION MORTIS CAUSA donating the Subject Property to and in favor of Third-Party Claimant x x x; (c) Four years later, or on May 20, 2003, PARDO, a widow, age 78, died intestate, and without issue x x x; (d) PARDO having passed away intestate and without issue and by virtue of the DONATION MORTIS CAUSA, Third-Party Claimant became the owner of the Subject Property. Me and his family have since taken possession thereof and are residing there up to now; (e) To supplement what little and highly irregular, if totally unreliable, income he gets from working part time in a cousin's small business enterprise, Third-Party Claimant leases out portions of the house to boarders, one of them a woman known by the name of EVANGELINE P. CACALDA; (f) In the course of time, CACALDA, who represented herself as having the capacity to have the title transferred to Third-Party Claimant's name, was able to gain the complete confidence of the Third-Party Claimant, and he, in all his layman's utter vulnerability, entrusted her not only with the owner's duplicate of TCT No. 135066 x x x for purposes of transferring the Subject Property to Third-Party Claimant's name but also the amount of P135,000.00 (out of the hurried sale of another small property he also inherited from PARDO) to pay what CACALDA made him believe was the amount of taxes and other expenses to be incurred to have the title transferred; (g) However, CACALDA never got the transfer done, and, not before long, left the Third-Party Claimant's house where she was boarding, and never showed up ever again; (h) Sometime in October 2004, Third-Party Claimant discovered the following Entry No. 2004-5119/T-135066 which was annotated on August 13, 2004 on page 2 of TCT 135066 x x x, which reads: ENTRY NO. 2004-5119/T-135066 - REAL ESTATE MORTGAGE WITH SPECIAL POWER TO SELL MORTGAGE (sic) PROPERTY WITHOUT JUDICIAL PROCEEDINGS - In favor of EVANGELINE C. PANGILINAN (Mortgagee) covering the property described herein to guarantee the credit facility or principal loan obligation in the amount of TWO HUNDRED THOUSAND PESOS (P200,000.00), Philippine Currency, upon terms and conditions set forth in Doc, No. 458; page No. 92; Book No. 41; Series of 2004 acknowledged before Notary Public Jesus B. Bongonfor Pasay City. (i) Upon learning about the above-cited annotation on TCT No. 135066 xxx Third-Party Claimant sought the assistance of the Public [Attorney's] Office and filed a complaint for estafa against CACALDA on October 6, 2004 and annotated his Adverse Claim on TCT 135066 x x x per Entry No. 2004-7480/T-135066 dated October 28, 2004; (j) In response to the said Petition, Third-Party Claimant xxx filed an OPPOSITION AND MOTION TO DISMISS x x x, to which [Pangilinan] filed her REPLY/COMMENT where she attached, among other documents, copies of the following: j.1 Real Estate Mortgage with Special Power to Sell Mortgaged Property Without Judicial Proceedings allegedly signed by PARDO xxx; j.2 The purported Community Tax Certificate (CTC) No. CC12003 21039100 issued July 13, 2004 in Pasay City, of alleged PARDO who mortgaged the Subject Property xxx: j.3 Two photographs taken by the alleged mortgagor-debtor PARDO when she signed the loan documents x x x [.]
6. From all the foregoing, it is crystal clear that:7. The said Petition for Cancellation of Adverse Claim is yet to be resolved by Hon. Ma. Rosario B. Ragasa, Presiding Judge of RTC Branch 108, and here is [Pangilinan] filing yet another petition, this time for Writ of Possession;
- PARDO, the true and real owner of the Subject Property, COULD NOT HAVE ENTERED INTO, MUCH LESS SIGNED, the Real Estate Mortgage with Special Power to Sell Mortgaged Property Without Judicial Proceedings x x x, as she had been LONG DEAD at the time of the execution thereof x x x;
- PARDO, the true and real owner of the Subject Property, who was bom on December 29, 1924, was 78 years old at the time she died on May 20, 2003, as shown in her Death Certificate x x x and in her obituary xxx, and could not have been the PARDO who issued the Community Tax Certificate (CTC) No. CC12003 21039100 issued July 13, 2004 in Pasay City xxx with the birth date "April 25, 1957," which CTC was submitted to, and relied upon by, Defendant PANGILINAN to establish the identity of PARDO[,] the alleged mortgagor-debtor;
- The photographs x x x taken of the alleged PARDO who mortgaged the Subject Property and who received the proceeds of the mortgage loan of P200,000.00 show CACALDA, the former boarder of [Third-Party Claimant] and swindler par [excellence], and CERTAINLY NOT THE LONG DECEASED PARDO, the true and real owner of the Subject Property;
- All the signatures, including the thumbmarks, shown on the Real Estate Mortgage with Special Power to Sell Mortgaged Property Without Judicial Proceedings x x x are FAKE, COUNTERFEIT, BOGUS, PHONY AND FORGED, as they DON'T belong to PARDO, the true and real owner of the Subject Property, who had been LONG DEAD at the time of the execution thereof, but to the impostor CACALDA.
8. Third-Party Claimant has already filed a complaint directly attacking the validity of [Pangilinan's] title and praying for, among other things, the annulment of TCT 1 Mill as having emanated from an illegal source, as well as the reinstatement of the former title, TCT 135066, in the name of PARDO, Third-Party Claimant's deceased aunt, benefactor and donor without all the liens and [encumbrances] caused to be annotated thereon by Petitioner x x x.
9. Third-Party Claimant is the rightful owner of the Subject Property and is entitled to its possession, not [Pangilinan] whose title TCT 147777 emanated from an illegal source and is therefore null and void.[10]
SECTION 7. In any sale made under the provisions of this Act, the purchaser may petition the Court of First Instance (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. Such petition shall be made under oath and filed in 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 the 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.There is, however, an exception to the rule. Under Section 33, Rule 39 of the Rules of Court,[25] the possession of the property shall be given to the purchaser or last redemptioner unless a third party is actually holding the property in a capacity adverse to the judgment obligor. Thus, the court's obligation to issue an ex parte writ of possession in favor of the purchaser in an extrajudicial foreclosure sale ceases to be ministerial when there is a third party in possession of the property claiming a right adverse to that of the judgment debtor/mortgagor.[26] In such a case, the issuance of the writ of possession ceases to be ex-parte and non-adversarial as the trial court must order a hearing to determine the nature of said possession, i.e., whether or not possession of the subject property is under a claim averse to that of the judgment debtor.[27] We repeatedly emphasize though that the exception provided under Section 33 contemplates a situation in which a third party holds the property by adverse title or right vis-a-vis the judgment debtor or mortgagor, such as that of a co-owner, agricultural tenant or usufructuary, who possesses the property in his or her own right, and is not merely the successor or transferee of the right of possession of another co-owner or the owner of the property.[28]
Although the above provision clearly pertains to a writ of possession availed of and issued within the redemption period of the foreclosure sale, the same procedure also applies to a situation where a purchaser is seeking possession of the foreclosed property bought at the public auction sale after the redemption period has expired without redemption having been made. The only difference is that in the latter case, no bond is required therefor, as held in China Banking Corporation v. Lozada, thus:It is thus settled that the buyer in a foreclosure sale becomes the absolute owner of the property purchased if it is not redeemed during the period of one year after the registration of the sale. As such, he is entitled to the possession of the said property and can demand it at any time following the consolidation of ownership in his name and the issuance to him of a new transfer certificate of title. The buyer can in fact demand possession of the land even during the redemption period except that he has to post a bond in accordance with Section 7 of Act No. 3135, as amended. No such bond is required after the redemption period if the property is not redeemed. x x x (Emphasis supplied)Upon the expiration of the period to redeem and no redemption was made, the purchaser, as confirmed owner, has the absolute right to possess the land and the issuance of the writ of possession becomes a ministerial duty of the court upon proper application and proof of title.[24]