IFC SERVICE LEASING AND ACCEPTANCE CORPORATION, PETITIONER-APPELLEE, VS. VENANCIO NERA, MOVANT-APPELLANT.

This is an appeal from an
order of the Court of First Instance of Rizal,
denying appellant’s motion to set aside the writ of possession issued by the
court and the auction sale held before that by the sheriff.

The writ of possession
was issued by the lower court on February 26, 1963, on the ex parte application
of the appellee. The petition recited that, as
mortgagee of the property of the spouses Venancio
Nera and Rosa F. Nera,
situated at No. 9 Alcman Street, Quezon
City, appellee filed with the sheriff’s office in Quezon City a verified petition for the extrajudicial
foreclosure of the mortgage; that on October 27, 1961, after notice and
publication, the property (consisting of a house and lot) was sold to appellee as the highest bidder for P28,451.77; that the
period of redemption expired on October 27, 1962 without the property being
redeemed, for which reason the property was consolidated in the name of appellee to whom a new title, Transfer Certificate of Title
No. 65575, was issued.

On March 6, 1963,
appellant asked for a reconsider­ation of the order granting the writ of
possession on the ground that his failure to redeem the property was due to appellee’s misrepresentation. According to appellant, he
was notified by the appellee on October 31, 1962 that the period of redemption
had expired when the truth was, as he found later, that the sale was regis­tered
only on November 3, 1961
from which date the period of redemption must be reckoned. The court denied the
motion for failure of appellant to serve a copy on the appellee.

On March 26, 1963,
appellant filed another motion, an ex parte
application to set aside the writ of possession and the auction sale, on the
ground that the court had no jurisdiction to issue the writ and that the price
at which the mortgaged property was sold was grossly inadequate. As stated in the begin­ning, the
motion was denied, prompting appellant to bring this appeal.

The only issue raised in this appeal is whether in cases of
extrajudicial foreclosure of real estate mortgages, a regular action must be
instituted in order to secure possession of the property sold. Appellant
contends that the jurisdiction of the lower court to issue a writ of possession
is limited only to the dur­ation of the period of redemption and that after the
expiration of that period, the mortgagee’s remedy is
an ordinary action for recovery of possession. In support of this proposition,
appellant cites the follow­ing provisions of Act No. 3135, as amended by Act
No. 4118:

“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 a
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 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.”
(Underscoring supplied)

Appellant
also invokes Luna v. Encarnacion, 91 Phil. 531 (1952)
in which it was held that in case of refusal of the mortgagor to surrender the
possession of the property sold by the sheriff the remedy of the purchaser is
to bring an ordinary action for recovery of possession, instead of merely
asking for a writ of possession, in order to give the mortgagor the opportunity
to be heard not only regarding possession but also regarding the oblig­ation
covered by the mortgage.

The contention is without
merit. The applicable provision of Act No. 3135 is Section 6 which
provides that, in cases in which an extrajudicial sale is made, “redemption shall be governed by the provisions of sec­tions four hundred and sixty four to four hundred and sixty-six, inclusive, of the Code of Civil Procedure in
so far as these are not
inconsistent with the provisions of this Act.” Sections 464-466 .of the Code of Civil Procedure were
superseded by Sections 25-27 and Section 31 of Rule 39 of the Rules of Court,
which in turn were replaced by Sections 29-31 and Section 35 of Rule 39 of the
Revised Rules of Court. Section 35 of Rule 39 of the Revised Rules of Court expressly
states that “If no redemption be made with­in twelve (12) months after the
sale, the purchaser, or his assignee, is entitled to a conveyance and possession
of the property…… The possession of the property shall be given to the
purchaser or last redemptioner by the same officer
unless a third party actually holding the property adversely to the judgment
debtor.”

Indeed, as this Court
held in Tan Soo Huat v. Ong­wico, 63 Phil. 746, 749 (1936),

“There is no law in this jurisdiction whereby the purchaser at
a sheriff’s sale of real property is obliged to bring a separate and
independent suit for possession after the one-year period for redemption has
expired and after he has obtained the sheriff’s final certificate of sale.
There is neither legal ground nor reason of public policy precluding the court
from ordering the sheriff in this case to yield possession of the property
purchased at public auction where it appears that the judgment debtor is the
one in possession thereof and no rights of third persons are involved.”

This same ruling was made
in Rivera v. Court of First Instance of Nueva
Ecija, 61
Phil. 201 (1935) (judicial foreclosure of mortgage) and in Republic v. Nable, G. R. No, L-4979, April 30, 1952 (execution sale).

Moreover, if under Section 7 of Act No. 3135 the court has the
power, on the ex parte application of
the purchaser, to issue a writ of possession during the period of redemption,
there is no reason why it should not also have the same power after the
expiration of that period, especially where, as in this case, a new title has already been issued in
the name of the purchaser.

The case of Luna v. Encarnacion,
supra, cannot be applied to the present case because that case involves
the extrajudicial foreclosure of a chattel mortgage. The Chattel Mortgage Law
(Act No. 1508) contains no provisions similar to Sections 6 and 7 of Act No.
3135 which, as al­ready pointed out, make the Rules of Court provisions on re­demption
in cases of judicial and execution sales applicable.

IN VIEW OF THE FOREGOING, the order appealed from is
hereby affirmed, without pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez,
and Ruiz Castro, JJ.,
concur.