PRIMO ZUÑIGA, PETITIONER-APPELLANT, VS. PABLO MARQUEZ AND EMILIA QUIOGUE, RESPONDENTS-APPELLEES.

This is an appeal from the order of the Court of First Instance of Rizal of February
8, 1964, in civil case 6190, denying the petitioner-appellant Primo
Zuñiga’s petition for a writ of possession over a
residential lot he purchased at an extrajudicial
foreclosure sale.

Zuñiga was the mortgagee and buyer at an extrajudicial foreclosure sale of
a parcel of land located in Parañaque, Rizal, covered by Transfer Certificate of Title 94479 of
the Registry of Deeds of Rizal in the name of Enrique
Legarda, Jr. 
During the period for redemption, Zuñiga filed
with the lower court a petition praying that a writ of possession over the said
property issue in his favor.  This
petition, unopposed by Legarda, was granted, and on May 24,
1963 a writ of possession was
issued in Zuñiga’s favor.^[1]

Enforcement of this writ was however stayed by a preliminary
injunction issued by the Pasay City Branch of the
Court of First Instance of Rizal in civil case 477-R,
filed by the spouses Pablo Marquez and Emilia Quiogue (oppositors-appellees
herein) against Legarda and Zuñiga,
for the annulment of a contract of sale with mortgage as well as a deed of
cancellation of mortgage over the above-mentioned property executed by the said
spouses in favor of Enrique Legarda, Jr.  The injunction was, however, subsequently
lifted, and on September 2, 1963
an alias writ of possession was, upon motion of Zuñiga,
issued by the court a quo.

In the meantime, on August 27, 1963, the spouses Marquez moved
to dissolve or suspend the writ of possession issued on May 24, 1963, alleging
that they are the owners of the property registered in the name of Enrique Legarda, Jr. and that the latter succeeded in registering
in his name the said property through his and Zuñiga’s
fraudulent acts and misrepresentations.^[2]

On September 7, 1963 the spouses Marquez
executed a letter authorizing Zuñiga to take
possession of the property in question,
and the latter accordingly assumed possession thereof.  On October 19, 1963, however, the spouses
Marquez filed with the court below a “Motion to Admit Memorandum” in
which they (1) alleged that they left the property only to avoid harassment
against members of their family, and (2) argued that third persons in honest
adverse possession of a piece of property may not be dispossessed by a writ of
possession.  The court below at first denied
the motion, but subsequently reconsidered and granted it on February 8, 1964,
over the vigorous objection of Zuñiga who, invoking
the provisions of sections 6 and 7 of Act 3135, as amended by Act 4118,
contended that the writ of possession having already been executed, the lower
court no longer had jurisdiction to can­cel the writ (or, for that matter,
issue another writ of possession) because the one-year period of redemption had
expired on January 31, 1964.

On June 29, 1964
Zuñiga lodged the present appeal, failing twice to
secure reconsideration of the order of February
8, 1964.^[3]

On January 26,
1966, after this appeal was submitted
for decision, a completely radical development ensued.  Assisted by counsel, Pablo Marquez, for
himself and as guardian of his two minor children (his wife Emilia
Marquez had died in the meantime),
filed a motion with this Court praying (a) that the order a quo
of February 8, 1964 and all orders related thereto be set aside, and (b) that
judgment be rendered declaring Zuñiga the absolute
and exclusive owner of the property in question.  This motion bears the conformity of Zuñiga and the latter’s counsel.

On February 1, 1966
this Court issued a resolution
granting the first prayer, but deferring action on the second until consideration on the merits.  This resolution
has rendered moot and academic and purposeless a further discussion of
the merits of the orders issued by
the court a quo.

On the other hand, the prayer that Zuñiga
be declared the owner of the property involved in this litigation cannot be
granted in this appeal, since it asks for a
judgment upon an issue not only not litigated below but as well
completely irrelevant to the orders of the lower court subject of this appeal.

ACCORDINGLY, the present appeal is hereby dismissed.  No pronouncement as to costs.

Reyes, Acting C.J., Dizon, Makalintal, Zaldivar, Fernando, Teehankee, Barredo, Villamor, and Makasiar, JJ., concur.

Concepcion, C.J., on official
leave.

^[1]
The order for issuance of the writ of possession is dated May 8, 1963.

^[2]
It was alleged that on December 19, 1961, the spouses entered into a
“Contract of Sale with Mortgage” with E. Legarda,
Jr. for P40,000, 50% of which was to be paid upon the execution of the contract
and the balance within the year; that the checks tendered by Legarda for the down payment were all dishonored; that Zuñiga, who Legarda told them was
a bank investigator, assured the spouses that a loan being applied for by Legarda at his bank would be a proved if the mortgage
annotation on the certificate of title was cancelled, for which reason they
executed a “Deed of Cancellation of Mortgage;” and that they learned
later that Zuñiga was not a bank investigator and
that Legarda had never filed loan application.

^[3]
The first motion for reconsideration dated February 18, 1964 was denied on
March 18, 1964; the second motion for reconsideration dated April 16, 1964 was
denied on June 11, 1964.