LEONARDO LIM DE MESA, PETITIONER, VS. HON. COURT OF APPEALS, HON. RODRIGO V. COSICO, AS PRESIDING JUDGE OF THE REGIONAL TRIAL COURT, BIñAN, LAGUNA; ROGELIO S. MOLINA, BRANCH SHE…

In a resolution promulgated on March 4, 1993 in CA-G.R. SP No.
29818, entitled “Leonardo Lim de Mesa vs. Hon. Rodrigo V. Cosico, etc., et al.,” respondent court
denied due course to the petition for certiorari which sought the
nullification of three orders of the Regional Trial Court, Branch 24, Biñan,
Laguna which were issued as incidents of Civil Case No. B-1942 thereof. Petitioner is now before us impugning the
aforestated resolution.^[1]

The case stemmed from an
action for partition filed by herein private respondents against their eldest
brother, herein petitioner Leonardo Lim de Mesa, and his sister Leticia Lim de
Mesa, which suit was docketed in the Regional Trial Court of Laguna, Branch 24,
as Civil Case No. B-1942. Private
respondents prayed therein for the partition of the property left by their
parents, Manuel de Mesa and Lucia Lim, consisting of a house and lot in Sta.
Rosa Estate Subdivision, Laguna and a funeral parlor; that petitioner Leonardo
de Mesa be compelled to render an accounting of the income of the funeral
parlor business from October 24, 1980, the date when the mother of the parties
died; and that private respondent Rogelio Lim de Mesa be declared the owner of
eight-tenths (8/10) of the entire estate, as the other heirs had assigned their
interests to him.

In his answer, petitioner
admitted that their deceased parents left the house and lot described in the
complaint, but claimed that the funeral parlor, known as Lim de Mesa Memorial
Chapel, was solely owned by him. Petitioner also alleged that their deceased parents left other
properties and businesses which are in the possession and under the management
of the two other plaintiffs therein.

After trial, the court
rendered the following judgment:

“WHEREFORE, in view of all the foregoing considerations,
judgment is hereby rendered as follows:

1. Ordering the partition of the estate of the
deceased spouses Manuel de Mesa and Lucia Lim described in paragraph 1 of the complaint as Lot No. 329 of the
Sta. Rosa Estate Subdivision with a residential house of strong material(s) and
a funeral business therein, all located at Sta. Rosa, Laguna, among the
following surviving heirs in the following proportions;

1. Rogelio Lim de Mesa – 9.8787872/13 shares
representing the sum total of his participations plus all the shares sold to
him by co-heirs Alfredo, Numeriano, Zenaida, Yolanda, Olivia, Benjamin, and Teresita,
all surnamed Lim de Mesa

2. Leonardo Lim de Mesa –
0.6515151/13 share

3. Leticia Lim de Mesa – 1.818181/13 share

4. Wilson Lim de Mesa – 0.6515151/13 share

as regards the property of the estate,
namely, Lot No. 329 and the residential house of strong material(s) erected
therein, and?

1. Rogelio Lim de Mesa  –            8/11
shares

2. Leonardo Lim de Mesa            –            1/11
shares

3. Leticia Lim de Mesa                –           1/11 shares

4. Wilson Lim de Mesa   – 1/11 shares

as regards the proceeds
from the funeral business from November 1980 up to the present after an
accounting thereof to be rendered by Leonardo Lim de Mesa.

2. Ordering the defendants
Leonardo Lim de Mesa and Leticia Lim de Mesa and plaintiff Wilson Lim de Mesa
to execute a deed of confirmation of the Extra-Judicial Partition with Sale
(Exhibit ‘H’) and ‘Reformation of Instrument’ (Exhibit ‘I’) dated January 27,
1983 and November 12, 1984, respectively.

3. Ordering defendant
Leonardo Lim de Mesa to render an accounting of the operation and management of
the funeral business from November 1980 up to the present within thirty (30)
days from the date this decision becomes final.

4. Ordering the defendants to pay the plaintiffs the amount of P30,000.00
as moral damages and the amount of P20,000.00 as reimbursement for attorney’s
fees.

5. Ordering defendants to
pay costs of suits.”^[2]

On appeal, the Court of Appeals affirmed the aforesaid judgment
with some modifications, that is, by deleting those portions thereof directing
therein defendants Leonardo and Leticia Lim de Mesa, aside from plaintiff
Wilson Lim de Mesa, to execute a deed confirming the extrajudicial partition
with sale and the reformation of instrument, and to pay the awards for moral
damages and attorney’s fees.^[3] Not
satisfied therewith, petitioners further sought relief from this Court which,
however, denied their appeal in a resolution dated January 27, 1992. On June 4, 1992, entry of said judgment was
made, thereby making the judgment of the lower court, as modified by respondent Court of Appeals, final and executory.

Thereafter, private respondents filed a motion for execution
which was granted by the lower court.^[4] A writ of execution was issued, but
the same was returned unsatisfied on September 21, 1992 due to petitioner’s
refusal to comply with the same. Private respondents then filed a motion to enforce judgment which was
granted by the lower court in its order dated October 14, 1992.^[5]

Subsequently, petitioner
filed a motion to be furnished copies of the basic pleadings and/or
orders. Private respondents filed their
opposition thereto, arguing that petitioner was not entitled to the relief prayed for since private respondents were
entitled to execution as a matter of right, and that all incidental matters flowing
therefrom may be resolved motu
proprio without prior
notice and hearing to petitioner. The
court a quo acted on petitioner’s motion by an
order, dated November 13, 1992, directing private respondent Rogelio Lim de Mesa
to furnish petitioner a copy of the deed of partition and such documents as the latter would specify.^[6]

Private respondents then filed a motion to resolve the incident
subject of the order of October 14, 1992 and this, in turn, led to the issuance
of the lower court’s order dated November 18, 1992.^[7] Upon
motion filed by private respondents, the lower court issued another order,
dated November 25, 1992, granting the former’s motion for a writ of possession
and delineation of property lines.^[8]
Petitioner thereafter moved for the reconsideration of the orders dated
November 18 and 25, 1992, contending that the same were issued in violation of
Section 4, Rule 15 of the Rules of Court, as these were issued ex parte.^[9] In its order dated December 23, 1992, the court below denied the
motion for reconsideration.^[10]

A petition for certiorari was then filed by petitioner in
the Court of Appeals assailing, on the same grounds, the following orders of
the trial court, to wit:

“1. ORDER dated October 14, 1992 designating Atty. Luzod, Jr.
to sign the deed of partition for and in behalf of Leonardo Lim de Mesa,
petitioner, to enforce the judgment, and ordering
petitioner to explain within 10 days from notice why he should not be cited
(for) contempt of court pursuant to Sec. 3 (a) in relation to Sec. 6 and 7,
Rule 71 of the Revised Rules of Court;

2. ORDER dated
November 18, 1992, giving petitioner an extension of 15 days to render an
accounting and in case of failure, to cite him (for) contempt of court (for)
violation of Sec. 3(b) in relation to Sec. 6, (Rule 71), Rules of Court, and if
he continues to disobey, the public respondent may be constrained to order his
imprisonment.

3. ORDER dated November 25, 1992, granting a writ of possession
directing the respondent Sheriff to place private respondent Rogelio Lim de Mesa in possession of the property pertaining
to him by virtue of ANNEXES ‘X’, ‘A’, to ‘A-4’.”^[11]

In its resolution of
March 4, 1993, as stated at the outset, respondent Court of Appeals ruled
against therein petitioner,^[12] hence
the instant petition with the following assignment of errors:

“1. The Court of Appeals erred in applying Rule 39 of the
Rules of Court and, therefore, in concluding that the judgment in the action
for partition in Civil Case No. B-1942 became final and executory as of June 4,
1992 and the prevailing party is entitled to a writ of execution the issuance
of which is a ministerial duty of the court.

2. The Court of Appeals
also erred in holding that the three (3) assailed orders in Civil Case No. B-1942 were issued consequent
to the execution of a judgment that has already become final and executory.

3. The Court of Appeals
finally erred in holding that the three (3) assailed orders in Civil Case No.
B-1942 having been issued ex-parte is of no moment where the execution is a
matter of right and the losing party need not be given advance notice of hearing of such motion.”^[13]

It is from the foregoing perceptions that the main thrust of
herein petitioner’s arguments postulates the supposed nullity of the writ of
execution issued by the trial court since the same was issued without prior
notice and hearing. We disagree.

Jurisprudentially
entrenched is the rule that a judgment ordering partition with damages is final
and duly appealable, notwithstanding the fact, which petitioner seeks to
capitalize on, that further proceedings will still have to take place in the
trial court.^[14]

There are two stages involved in the special civil action of
judicial partition and accounting under Rule 69 of the Rules of Court.

The first stage of an action for judicial partition and/or
accounting is concerned with the determination of whether or not a co-ownership in fact exists and a
partition is proper, that is, it is not otherwise legally proscribed and may be
made by voluntary agreement of all the parties interested in the property. This phase may end in a declaration that
plaintiff is not entitled to the desired partition either because a
co-ownership does not exist or a partition is legally prohibited. It may also end, on the other hand, with an
adjudgment that a co-ownership does in truth exist, that partition is proper in
the premises, and that an accounting of rents and profits received by the
defendant from the real estate in question is in order. In the latter case, “the parties may,
if they are able to agree, make partition among themselves by proper
instruments of conveyance, and the court shall confirm the partition so agreed
upon by all the parties.”^[15] In
either case, whether the action is dismissed or partition and/or accounting is
decreed, the order is a final one and may be appealed by any party aggrieved
thereby.^[16]

The second stage
commences when the parties are unable to agree upon the partition ordered by
the court. In that event, partition
shall be effected for the parties by the court with the assistance of not
more than three (3) commissioners. This second phase may also deal with the
rendition of the accounting itself and its approval by the Court after the
parties have been accorded the opportunity to be heard thereon, and an award
for the recovery by the party or parties thereto entitled of their just shares
in the rents and profits of the real estate in question. Such an order is, to be sure, also final and
appealable.^[17]

In the decision ordering
partition, the execution of that part of the judgment which will not
necessitate any further proceedings may be enforced. Further proceedings, such as the appointment of commissioners to
carry out the partition and the rendition and approval of the accounting, may
be had without prejudice to the execution of that part of the judgment which
needs no further proceedings. Thus, it
has been held that execution was entirely proper to enforce the defendant’s obligation
to render an accounting and to exact payment of the money value of the
plaintiffs’ shares in the personal property and attorney’s fees due defendants,
as well as the costs of the suit and damages.^[18]

In the present case, the
decision ordering partition and the rendition of accounting had already become
final and executory. The execution
thereof thus became a matter of right on the part of the plaintiffs, herein
private respondents, and is a mandatory and ministerial duty on the part of the
court. Once a judgment becomes final
and executory, the prevailing party can have it executed as a matter of right,
and the judgment debtor need not be given advance notice of the application for
execution nor be afforded prior hearings thereon.^[19]

On the bases of the foregoing considerations, therefore, the
Court of Appeals acted correctly in holding that the failure to serve a copy of
the motion for execution on petitioner is not a fatal defect. In fact, there was no necessity for such
service.

However, notwithstanding our aforesaid observations, the orders
of the trial court dated October 14, 1992 and November 25, 1992, respectively
directing Atty. Luzod, Jr. to sign the deed of partition for and in behalf of
petitioner and granting the writ of possession, must be set aside for having
been rendered in excess of
jurisdiction.

The trial court cannot
compel herein petitioner to sign the extrajudicial deed of partition prepared
solely by private respondents. Concomitantly, it cannot issue a writ of possession pursuant to the said
extrajudicial partition.

An action for partition,
which is typically brought by a person claiming to be the owner of a specified
property against a defendant or defendants whom the plaintiff recognizes to be
his co-owners, may readily be seen to simultaneously present two principal
issues. Firstly, there is the issue of
whether the plaintiff is indeed a co-owner of the property sought to be
partitioned. Secondly, assuming that
the plaintiff successfully hurdles the first issue, there is the secondary
issue of how the property is to be divided between the plaintiff and the
defendants, that is, what portion should go to which co-owner.^[20]

After a judgment is rendered in an action for partition declaring
that the property in question shall be divided among the parties thereto, the
procedure provided by law thereafter is that, if the parties can agree among
themselves, then the partition can be made by them through the proper
instruments of conveyance which shall be submitted for approval of the court,
and such partition with the court order confirming the same shall be recorded
in the office of the proper registry of deeds. But, if the parties are unable to agree upon the partition, the court
shall by order appoint not more than three (3) competent and disinterested
persons as commissioners to make the partition, commanding them to set off to
the plaintiff and to each party in interest such part and proportion of the
property as the court in such order shall direct.^[21]

The decision in Civil Case No. B-1942 merely declares that
partition is proper and forthwith specified therein the respective aliquot
shares of the parties to the real estate and to the proceeds of the funeral
business. Withal, it did not specifically
state, by metes and bounds and by adequate description, the particular portion
of the real estate to be assigned to each party. Actual partition is, therefore, necessary. Since the parties, however, cannot agree on
the actual division and allocation of the property held in common, the trial
court should order the appointment of commissioners to carry out the partition,
as provided by Section 3 of Rule
69.

WHEREFORE, the assailed resolution of respondent
Court of Appeals is hereby MODIFIED and
the questioned orders of the trial court dated October 14, 1992 and November
25, 1992 are hereby SET ASIDE. The
court a quo is directed to immediately appoint
and constitute the necessary number of commissioners who shall expeditiously
effect the partition of the subject property in accordance with Rule 69 of the
Rules of Court.

SO ORDERED.

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

^[1]
Penned by Justice Ricardo J. Francisco,
with Justices Alicia Sempio-Diy and Consuelo Ynares-Santiago, concurring.

^[2]
Rollo, 67-69; per Judge Jose Mar Garcia.

^[3]
Ibid., 70-79.

^[4]
Rollo, CA-G.R. SP No. 29818, 66.

^[5]
Ibid., id., 16.

^[6]
Ibid., id., 76-77.

^[7]
Ibid., id., 17.

^[8]
Ibid., id., 18.

^[9]
Ibid., id., 80-82.

^[10]
Ibid., id., 83-84.

^[11]
Rollo, 2-3.

^[12]
Ibid., 29-32.

^[13]
Ibid., 19.

^[14]
Miranda, et al. vs. Court of Appeals, et
al., L-33007, June 18, 1976, 71 SCRA 295; Municipality of Biñan vs. Garcia, etc., et al., G.R. No. 69260, December 22, 1989, 180 SCRA
576; Napilan, et al. vs. Intermediate Appellate Court, et al., G.R.
No. 70025, March 14, 1990, 183 SCRA 126.

^[15]
Sec. 1, Rule 69.

^[16] Procedurally, an order of partition is
similar to an order of condemnation in
expropriation proceedings under Rule 67. After the order of condemnation is rendered, there is still the substantial issue of just compensation to
be litigated in and decided by the trial court. However, being determinative of the right to expropriate, such
order of condemnation is a final order on that issue and is appealable (Uriarte
vs. Teodoro, 86 Phil. 196). In
like manner, an order of partition is determinative of the issues of the
existence of co-ownership and the right to terminate the same, hence it is a
final order on said issues even if the matter of actual partition and/or
accounting still have to be resolved.

^[17]
Municipality of Biñan vs.
Garcia, et al., supra.

^[18]
Arive, et al. vs. Ybañez, et al.,
92 Phil. 1069 (1952); Napilan, et al. vs. Intermediate Appellate Court,
et al., supra.

^[19]
Pamintuan, et al. vs. Muñoz, et
al., L-26331, March 15, 1968, 22 SCRA 1109; Far Eastern Surety & Insurance
Co., Inc. vs. Vda. de Hernandez, et al., L-30359, October 3, 1975, 67
SCRA 256; Development Bank of the Philippines vs. Court of Appeals, et
al., G.R. No. 75964, December 1, 1987; 156 SCRA 84.

^[20]
Roque vs. Intermediate Appellate Court, et al., G.R. No. 75886, August
30, 1988, 165 SCRA 118.

^[21]
Secs. 2 and 3, Rule 69, Rules of Court; Honorio vs. Dunuan, etc., et
al., L-38999, March 9, 1988, 158 SCRA 515.