G.R. No. L-6493. March 25, 1954

Petitioner is the registered owner of the real property described in
Transfer Certificate of Title No. 3731 of the Land Records of the City
of Manila, which, by way of extra judicial foreclosure of a mortgage
constituted upon the same in favor of the Rehabilitation Finance
Corporation, was on November 14, 1952, sold to the Republic Surety
& Insurance Co., Inc., as the highest bidder at a public auction
conducted by the sheriff of said city under a special power of attorney
attached to the mortgage deed and pursuant to Act No. 3135, as amended
by Act No. 4118. Three days after the sale, the purchaser filed an ex parte
motion, duly verified, in the fourth branch of the Court of First
Instance of Manila as authorized in section 7 of the same Act, as
amended, praying that it be given possession of the property during the
redemption period and offering to furnish the corresponding bond. But
before the motion could be acted upon, herein petitioner filed an
opposition thereto and followed it with a complaint for the annulment
of the sale and a motion to dismiss the petition for a writ of
possession or to postpone consideration thereof until the complaint for
annulment could be decided. Being specifically empowered by the Act to
grant such writ on an ex parte motion by the purchaser, the
court refused to be sidetracked and authorized the issuance of the writ
upon the filing of a bond without prejudice to the right of the
oppositor to question the validity of the sale in the manner provided
by law.

Contending that the lower court acted without jurisdiction and with
grave abuse of discretion in authorizing the issuance of the writ,
petitioner has come to this Court for a writ of certiorari and
prohibition.

The petition is without merit.

Sections 7 and 8 of Act No. 3135, as amended, provide:

“SEC. 7. 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 form or 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. (Italics 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.”

As may be seen, the law expressly authorizes the purchaser to
petition for a writ of possession during the redemption period by
filing an ex parte motion under oath for that purpose in the
corresponding registration or cadastral proceeding in the case of
property with Torrens title; and upon the filing of such motion and the
approval of the corresponding bond, the law also in express terms
directs the court to issue the order for a writ of possession.

Under the legal provisions above copied, the order for a writ of
possession issues as a matter of course upon the filing of the proper
motion and the approval of the corresponding bond. No discretion is
left to the court. And any question regarding the regularity and
validity of the sale (and the consequent cancellation of the writ) is
left to be determined in a subsequent proceeding as outlined in section
8. Such question is not to be raised as a justification for opposing
the issuance of the writ of possession, since, under the Act, the
proceeding for this is ex parte.

It thus appear that the respondent Judge, in ordering the issuance
of a writ of possession in this case, merely obeyed an express mandate
of the law in the manner and upon the terms therein provided, and
petitioner may not complain that he has been deprived of a substantial
right without due process, because the order states that it is to be
“without prejudice to the rights of the oppositor to question the
validity of the above mentioned sale in the manner provided by law.”

Having merely followed an express provision of law, whose validity
is not questioned, the Judge cannot be charged with having acted
without jurisdiction or with grave abuse of discretion. The rule that
the purchaser at a judicial public auction is not entitled to
possession during the period of redemption is not applicable to a sale
under Act No. 3135 where the granting of said possession is expressly
authorized. And if this Court in the case of Previsora Filipina vs.
Felix Z. Ledda, 66 Phil., 573, refused to give effect to the provisions
of Act No. 4118 (the amendatory Act) by not authorizing the issuance of
a writ of possession during the period of redemption, it was because
the mortgage involved in the case was constituted prior to the approval
of said Act and, “civil laws have no retroactive effect unless it is
otherwise provided therein.” In the present case, the mortgage was
constituted in 1948 and 1949. It is, therefore, subject to the
provisions of the Act, which took effect on December

In view of the foregoing, the petition for certiorari and prohibition is dismissed, with costs against petitioner.

Paras, C. J., Jugo, Pablo, Bautista Angelo, Bengzon, Labrador, Padilla, Concepcion, Montemayor and Diokno, JJ., concur.