CATALINO, ZOILO, FELISA AND LUISA, ALL SURNAMED DAVAC, PETITIONERS, VS. THE COURT OF APPEALS, AND EPIFANIO, PAULO, ANTONIO AND GREGORIO ALL SURNAMED FULLANTE, RESPONDENTS.

This is a petition for review on certiorari seeking to set
aside the Decision of the respondent court^[1] dated
April 3, 1992 in CA G.R. SP No. 26957 dismissing petitioners’ petition for certiorari
and its Resolution of June 4, 1992 denying their motion for reconsideration.

The records show that on July 7, 1983, petitioners filed a
Complaint for Recovery of Ownership of Real Property against the private
respondents Epifanio, Paulo, Antonio and Gregorio all surnamed Fullante. The case was docketed as Civil Case No.
293-A in the RTC, Antipolo, Rizal. The
Complaint was answered in due
time by the private respondents.

On December 22, 1986, a Compromise Agreement was submitted for
approval of the trial court. The
Agreement was signed by the petitioner Catalino Davoc “in his own right
and in representation of his co-plaintiffs” (i.e., the other petitioners
herein) and by “Pedro Belmi, counsel for the plaintiff.” The
Agreement was also signed by private respondent Paulo Fullante “in his own
right and in representation of his co-defendants Epifanio, Antonio and Gregoria
all surnamed Fullante,” and by “Josefina N. Olitan, counsel for
defendants.” On January 2, 1987, the trial court rendered a Decision
approving the Compromise Agreement.

The parties then tried to effectuate the Decision. On August 11, 1988, the trial court issued
an Order directing the following:

“1.) That the whole land, lots 1, 2, 3 and
4 will be surveyed;

2.) To be included in the survey is the right of
way of the plaintiffs on lot 2 of not more than three (3) meters wide;

3.) That the parties will submit the names of three Geodetic surveyors
within five (5) days from today, one of whom will undertake the survey as
stated in no. 1 after raffle to be conducted in the presence of counsels of
both parties before the Acting Clerk, Atty. Myrna Directo, on August 17, 1988
at 8:30 A.M. in the office of the Clerk of Court. The name of Engineer Benjamin Sales was submitted by the
plaintiffs. The names of the other two
geodetic engineers will be submitted by the defendants;

4.) The
findings and result of the survey conducted and made by the surveyor selected
on the basis of the raffle will be binding on the plaintiffs and defendants to
terminate finally the rights of the parties on the questioned land;

5.) The expenses for the survey will be
shouldered by the plaintiffs.”

The Order was made pursuant to the
agreement of the parties.

On September 22, 1988, the trial court modified its August 11,
1988 Order. It commissioned geodetic
engineer Emiliano Santos to survey the subject lot. The modification was prompted by the motion of Atty. Josefina
Olitan, counsel of private respondents, which was not opposed by Atty. Belmi,
counsel of petitioners.

Engineer Santos, however, failed to submit the survey plan of the
subject lots. Upon motion of Atty.
Belmi, the trial court appointed geodetic engineer Jesus Pampilona to do the
survey plan in an Order dated October 26, 1990. Atty. Olitan did not oppose the motion.

In the interim, private respondents changed their counsel. Atty. Aladdin F. Trinidad became their
counsel. The proceedings took a new
twist. On November 26, 1990, Atty.
Trinidad filed a Motion to Declare Null and Void the Compromise Agreement and
the Decision approving the same. He
charged that Paulo Fullantes had no power of attorney to sign for the other
private respondents. Petitioners
opposed the Motion. They alleged:

x x x

“2. That the aforesaid Compromise Agreement can
not now be assailed by the defendants on the following grounds:

(a) It was signed by one of the defendants for
himself and in behalf of his co-defendants who are his brothers;

(b) A
Compromise Agreement even if signed only by the counsel without authorization
from the clients is not void but merely unenforceable which as in the case at
bar may be ratified by the said defendants expressly or impliedly as shown by
the subsequent events which took place since the execution of said Compromise
Agreement (Bumanlag v. Alzate, 144 SCRA 480, 481);

(c) Defendants are guilty of laches; and, they
are on estoppel to question the validity of said Compromise Agreement.

3. The contention of defendants that the
Compromise Agreement not signed by the parties themselves or signed by one of
them for and in behalf of others without any written special authority to
compromise is null and void is not correct because according to the doctrine
laid down in the case of Dungo vs. Lopena, 6 SCRA 1007, and the cited case of
Dumanlag vs. Alzate, supra, it is only unenforceable and, therefore, may be
ratified expressly or impliedly by the conduct of the party or parties
assailing the aforesaid Compromise Agreement.”

On March 7, 1991, the trial court declared its Decision dated
January 2, 1987 “unenforceable against the defendants Epifanio Fullante, Antonio
Fullante and Edgardo Fullante . . .” No further challenge was made against
this Order.

For reasons which do not appear on record, the trial court set
the pre-trial of the case on June 20, 1991. On June 17, 1991, petitioners filed a Motion to Declare Judgment by
Compromise Ratified. They alleged, inter
alia, viz:

x x x

“2. That while said Decision and Compromise
Agreement were “unenforceable”, plaintiffs respectfully submit that
the same were duly ratified by the defendants as shown by their subsequent
conduct spread in the records of the above entitled case after said Decision
and Compromise Agreement were sought to be enforced by the plaintiffs, viz:

(a) On 11 August 1988 this Honorable Court
issued an Order requiring the parties to submit the names of the surveyors who
will conduct the survey of the land subject matter of the Compromise Agreement,
one of the surveyors to be proposed by the plaintiff and the other two by the
defendants; and, the said Order was issued by agreement of the parties;

(b) On 17 August 1988 defendants, thru Counsel,
moved in open court to modify No. 3 of the Order dated 11 August 1988 proposing
that Geodetic Engineer Emiliano Santos be designated by the Honorable Court to
conduct the survey and to submit to the Honorable Court not later than 22
September 1988 the result of the survey of the land subject matter of the
Compromise Agreement; and, accordingly, the Honorable Court issued an Order
directing Geo. Engr. Emiliano Santos to survey the whole lot in accordance with
the compromise agreement entered into by the plaintiffs and defendants on
October 29, 1986 at the expense of the plaintiffs; and that he is further
ordered to submit to the Court the result of his survey not later than
September 22, 1988;

(c) On 12 December 1988 defendants, thru
counsel, submitted a Manifestation, stating among others, that they had the
land in question, subject matter of the Compromise Agreement and prayed the
Honorable Court to approve the survey made thereon by said Geodetic Engineer Emiliano
Santos, thru one Domingo Rigunay; however, the said survey was not approved
because it was not signed by the Geodetic Engineer Santos who died;

(d) On 18 February 1989 defendants, thru
counsel, submitted another Manifestation, stating among others, that the
Court’s appointed surveyor be required to conduct the survey inasmuch as the
survey conducted by their Geodetic Engineer was not signed;

(e) When plaintiffs submitted the name of
Geodetic Engineer Jesus Pampilona, CENRO, DENR, Taytay, Rizal, to undertake the
relocation survey of the property subject matter of the Compromise Agreement,
defendants did not interpose objection thereto; and, the Honorable Court
accordingly appointed Geo. Engr. Pampilona;

(f) The property subject matter of Compromise
Agreement was surveyed by Jose San Jose of Teresa, Rizal, with the consent and
knowledge of the defendants; however, the survey of Jose San Jose was not
approved because it turns out that Jose San Jose was not a licensed
surveyor.”

On August 6, 1991, the trial court denied
the motion. It also reset the pre-trial
of the case on August 15, 1991. Petitioners moved for reconsideration but their plea was rejected on
September 24, 1991.

On January 3, 1992, petitioners filed with the respondent court a
petition for certiorari under Rule 65. They prayed:

“PREMISES CONSIDERED, it is respectfully prayed that the
instant Petition be GIVEN DUE COURSE; and, after due hearing, judgment be
rendered:

1 – REVERSING AND
SETTING ASIDE the Order dated 7 March 1991, Annex “K”, declaring as
“unenforceable the Judgment by Compromise in Civil Case No. 148-M of the
respondent Court; the Orders dated 6 August 1991 and 24 September 1991, Annexes
“M” and “N”, respectively, denying the motion of petitioners
to declare the Judgment by Compromise as valid and binding between the parties;

2 – DECLARING the Judgment by Compromise, Annex “D”, as valid and
binding between the parties;

3 – ORDERING the private respondents to pay the
costs of this suit.

PETITIONERS further pray for such other equitable reliefs under the
circumstances.”

On April 3, 1992, the respondent court
dismissed the petition. It held:

x x x

“With those holdings as guide, the Order of March 7, 1991 is a
final order. As decreed in the
dispositive portion of the Order, the x x x decision of the Court dated January
2, 1987, based on the Compromise Agreement, is hereby declare(ed) unenforceable
against the defendants Epifanio Fullante, Antonio Fullante and Edgardo Fullante
x x x, “and, therefore, there is nothing more that can be done with the
Order before the respondent court insofar as the said defendants are
concerned. The Order of March 7, 1991,
is a final order, and appealable, under Section 2, Rule 41, Rules of Court,
within thirty (30) days from receipt of the Order (sec. 3, id.). Since no appeal was interposed within the
reglementary period for appeal, the order became final, is unalterable and no
additions can be made thereto and nothing can be done therewith even by the
respondent court which issued it. On
these bases, the respondent court did not err in denying the motion to declare
the judgment by compromise ratified, as well as the motion for Reconsideration
of the Denial Order.

Another issue that should be looked into is whether the petition
for “Certiorari under Rule 65″ is an appropriate remedy? A
petition for certiorari under section 1 of Rule 65, Rules of Court, is
proper to correct errors of jurisdiction, committed by the lower court without
or in excess of jurisdiction, or with grave abuse of discretion which is
tantamount to lack of jurisdiction. In
other words, under Rule 65, it is errors of jurisdiction that are reviewable by
certiorari, and the instant petition, therefore, is not available
in this case as the order sought to be reviewed concerns errors of judgment
which is properly reviewable by appeal. Moreover, this original action for certiorari can not be a
substitute for the lost appeal.

Of course, there is
an “appeal by certiorari” under Rule 45 of the Rules of Court,
but that mode of appeal is from the judgment of this Court of Appeals to the
Supreme Court, and not from the judgment of the trial court to this Court,
which is covered by Rule 41.

In any event, since the adoption of Circular No. 2-90, requiring
“strict” compliance as of March 9, 1990, there is no more
“common mode of appeal to Court of Appeals and Supreme Court.” The
provisions of Rules 41 and 42 of the Rules of Court, prescribing a common mode
of appeal to the Court of Appeals and to the Supreme Court, and a common procedure
for considering and resolving an appeal, “are no longer in force, x x x
have been largely superseded and rendered functus officio by certain
statutes which wrought substantial changes in the appellate procedures in this
jurisdiction, notably: Republic Acts Nos. 5433 and 5440 (both effective on
September 9, 1968) and 6031 (effective August 4, 1969), and Batas Pambansa Blg.
129 (effective August 14, 1981);” and that “appeals by certiorari
will not lie with the Court of Appeals,” and that “an appeal taken to
either the Supreme Court or the
Court of Appeals by the wrong or inappropriate mode shall be dismissed.”

Thus, both from the substantive and procedural standpoints, the
petition is not meritorious.”

Petitioners’ motion for reconsideration
was denied on June 4, 1991.

Petitioners then filed the present petition charging grave abuse
of discretion on the part of the respondent court as follows:

“A – IN DECLARING
THE ORDER OF 7 MARCH 1991 DECLARING THE COMPROMISE AGREEMENT AND JUDGMENT BY COMPROMISE
AS UNENFORCEABLE, NOT MERELY INTERLOCUTORY; AND, THEREFORE, APPEAL IS THE
PROPER REMEDY, NOT CERTIORARI;

B – IN DENYING DUE COURSE AND DISMISSING THE
PETITION FOR CERTIORARI PURSUANT TO CIRCULAR NO. 2-90;

C – IN NOT DECLARING THE JUDGMENT BY
COMPROMISE AS VALID AND BINDING BETWEEN THE PARTIES, AND NOT DECLARING PRIVATE
RESPONDENT IN ESTOPPEL TO QUESTION THE VALIDITY OF SAID JUDGMENT.”

We find no merit to the petition.

The respondent court cannot be faulted for its ruling that the
Order of the trial court dated March 7, 1991 constitutes a final order and that
the remedy of an aggrieved party against it is appeal. A final order is a settled concept in our corpus of jurisprudence. As explained by Mr. Justice Florenz D.
Regalado:^[2]

“1. The term “final order” is used in
two senses depending on whether it is used on the issue of appealability or on
the issue of binding effect. For
purposes of appeal, an order is “final” if it disposes of the action,
as distinguished from an interlocutory order which leaves something to be done
in the trial court with respect to the merits of the case (De la Cruz, et
al. vs. Paras, et al., L-41053, Feb. 27, 1976). For purposes of binding
effect or whether it can be subject of execution, an order is “final”
or executory after the lapse of the reglementary period to appeal and no appeal
has been perfected (See Perez, et al. vs. Zulueta, L10374; Sept. 30,
1959; Cf. Denso [Phil.]
Inc. vs. IAC, et al., G.R. No. 75000, Feb. 27, 1987).”

The
Order of March 7, 1991 declaring the Decision unenforceable wrote finis to the case except as
to petitioners and private respondent Paulo Fullante who signed the Compromise
Agreement. If the trial court still
reset the case after its Order of March 7, 1991, it must be to determine how its
Decision can be enforced but only as between petitioners and private respondent
Paulo Fullante. The unenforceability of
the Decision against the other private respondents can no longer be litigated
as the Order of March 7, 1991 has already attained finality.

Petitioners did file a
Motion to Declare Judgment by Compromise Ratified. That was done on June 17, 1991 or more than three (3) months
after the Order of March 7, 1991. The motion was denied by the trial court, and rightly so. For clearly, the motion was intended to
assail anew the final Order of March 7, 1991, albeit, in a roundabout
manner. What cannot be done directly
cannot be done indirectly is a familiar rule even to students of law. Considering the finality of the Order of
March 7, 1991, the trial court had no more jurisdiction to act on petitioners’
motion. Moreover, the grounds raised by
petitioners are the same grounds raised by them when they opposed private
respondents’ Motion to Declare Null and Void the Compromise Agreement and the
Decision approving the same, supra. In its Order of March 7, 1991, the trial court held that except as to
Paulo Fullante, the Decision was unenforceable. It did not rule that the Decision had, nevertheless, been ratified
by subsequent acts of the parties. To
repeat, this Order of March 7, 1991 was not appealed by petitioners.

IN VIEW WHEREOF, the petition for review on certiorari
is dismissed for lack of showing that the respondent court committed grave
abuse of discretion in its Decision of April 3, 1992 and Resolution of June 4,
1992 in CA G.R. SP No. 26957. Costs
against petitioners.

SO ORDERED.

Narvasa, C.J., (Chairman), Padilla, and Regalado, JJ., concur.

^[1]
Former Seventh Division composed of Associate Justices Serafin Camilon
(Chairman), Artemon Luna (ponente) and Celso L. Magsino.

^[2]
Remedial Law Compendium, 5th ed., p.
260.