DOMINGA TINIO, PETITIONER, VS. UNITED COCONUT PLANTERS BANK (UCPB) AND JUDGE BENJAMIN T. ANTONIO, RESPONDENTS.
BARRIOS, J.:
The respondent United Coconut Planters Bank (or UCPB) had filed against Tinio before the RTC a suit entitled In Re: In the Matter of the Issuance of a Writ of Possession for Extrajudicial(ly) Foreclosed Real Property Duly Covered and Evidence by TCT No. 172540, Registry of Deeds for Malabon, Metro Manila, in the name of Dominga Tinio. After an ex-parte hearing an Order dated August 23, 2002 came forth disposing that:
Finding the petition to be sufficient in form and substance and duly substantiated by the evidence on record, the same is hereby granted.
WHEREFORE, let a writ of possession be issued accordingly. (p. 13, rollo)
The concomitant writ of possession was issued on September 30, 2002 and a notice to vacate on December 20, 2002.
On January 20, 2003 Tinio filed an Urgent Motion for Reconsideration (To Set Aside the Order dated August 23, 2002), asseverating that they were not notified of UCPB’s petition. Accordingly, they were prevented from interposing any objection on the petition and from assailing the validity of the foreclosure sale.
Citing Republic Act No. 8791 or the General Banking Act of 2000 which provides that the issuance of a writ of possession is ex-parte in nature, and so not susceptible of intervention and/or opposition from any party, UCPB opposed Tinio’s Urgent Motion for Reconsideration. The alleged irregularity in the foreclosure sale is immaterial and irrelevant in a petition for issuance of a writ of possession and cannot be raised as a ground to oppose this.
After an exchange of written arguments on the motion, the RTC handed down the Order dated April 14, 2003 decreeing that:
WHEREFORE, in the light of the foregoing, the Motion for Reconsideration is hereby denied.
SO ORDERED. (p. 34, rollo)
Defeated, Tinio filed a Notice of Appeal but the RTC denied this in the assailed Order dated May 7, 2003 holding that:
Section 1 of Rule 41 provides:
Section 1. Subject of appeal. – An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable.
No appeal may be taken from:
x x x x x x x x x x x x
(c) An interlocutory order;
x x x x x x x x x x x x
Mortgagor ought to know that the Order of this Court dated April 14, 2003 is merely interlocutory, and therefore not appealable.
WHEREFORE, premises considered, the Notice of Appeal is hereby denied due course for being contrary to the rule.
SO ORDERED. (p. 37, rollo)
Tinio thus sought relief via this petition for certiorari and mandamus theorizing that the respondent Honorable Judge acted without jurisdiction in denying and not giving due course to petitioner’s Notice of Appeal (p. 5, rollo).
Tinio asseverates that the Order dated April 14, 2003 denying her motion for reconsideration is a final order hence there is no procedural bar for her to appeal this. UCPB on the other hand posits that review of the trial court’s Order of April 14, 2003 cannot be made citing Section 9 of Rule 37 and Section 1 Rule 41. Tinio’s Notice of Appeal referred only to the Order of the trial court denying the motion for reconsideration and not the order granting the writ of possession as well. UCPB asserts that Tinio undertook a procedural misstep and the RTC thus acted well within its discretion in denying the Notice of Appeal.
Indeed the Order granting the writ of possession was merely interlocutory from which no appeal could be taken (City of Manila vs. Serrano, G. R. No. 142304, June 20, 2001). In this UCPB is correct. But then there is a specific and special remedy prescribed under Section 8 of Act No. 3135 for those against whom a writ of possession is issued. This remedy is to file a petition to set aside the sale and the cancellation of the writ of possession. The aggrieved party may thereafter appeal from any disposition by the court on the matter (Santiago vs. Merchants Rural Bank of Talavera, G. R. No. 147820, March 18, 2005). It is so provided that:
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. (underlining provided)
This in effect was the procedure of recourse taken by Tinio albeit her pleadings were titled differently. She however lost. But even if she were successful, Section 8 of Act No. 3135 mandates that if an appeal is interposed from an order granting a petition for a writ of possession, such order shall continue to be in effect during the pendency of an appeal.
Thus whether Tinio won or lost is immaterial. And no breach of due process can be invoked because the proceeding in a petition for a writ of possession is ex parte and summary in nature. It is a proceeding wherein relief is granted without an opportunity for the person against whom the relief is sought to be heard (Primetown Property Group vs. Juntilla, G. R. No. 157801, June 8, 2005). Rather the crux of this case is that the RTC should have allowed the appeal afforded by the law under this prescribed special procedure. In denying due course to it, the RTC acted with grave abuse of discretion. There is grave abuse of discretion where the public respondent acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of its judgment as to be said to be equivalent to lack of jurisdiction (Honrado vs. Court of Appeals, G. R. No. 166333, Nov. 25, 2005). We find that Tinio has sufficiently alleged and shown that the RTC committed grave abuse of discretion in denying due course to her Notice of Appeal. Indeed grave abuse of discretion may arise, as in this case, when a lower court or tribunal violates or contravenes the Constitution, the law or existing jurisprudence (Banal vs. Panganiban, G. R. No. 167474, November 15, 2005). Hence the grant of the writ in favor of Tinio is proper under the premises.
WHEREFORE, the instant petition is GRANTED. The assailed Order dated May 7, 2003 in LRC Case No. 767-MN is SET ASIDE, and the RTC is directed to give due course to Tinio’s Notice of Appeal.
SO ORDERED.
Guariña, III and Tagle, JJ., concur.