BIBLIA T. BANAGA, PETITIONER, VS. HON. JOSE S. MAJADUCON, PRESIDING JUDGE REGIONAL TRIAL COURT, COURT, BRANCH XXIII, 11TH JUDICIAL REGION, GENERAL SANTOS CITY AND CANDELARIO S. …

Banaga versus Majaducón

The Case

This is a petition for review on certiorari brought by Biblia Banaga against Judge Jose Majaducón, the presiding judge of the Regional Trial Court of General Santos City, and against the private respondent Candelario Damalerio. The action asks the Supreme Court to reverse the Court of Appeals, which had dismissed Banaga's special civil action for certiorari, prohibition and mandamus and had refused to disturb three orders issued by the trial court in the course of executing a final judgment. The case matters because it settles a procedural question every litigant must answer: when a party believes that a writ or order of execution has varied the tenor of the final judgment, is the remedy an ordinary appeal, or is it only a special civil action for certiorari? The Court answers that ordinary appeal remains available in the exceptional circumstances first listed in Limpin versus the Intermediate Appellate Court.

Procedural History

The story begins with an action for redemption of a parcel of land in General Santos City filed by Banaga against Damalerio before the Regional Trial Court, Branch 23, General Santos City. The trial court dismissed the complaint, but the Court of Appeals reversed and upheld Banaga's right to redeem. Damalerio's petition for review before the Supreme Court was denied. Banaga then failed to redeem within the given period, and the litigation over execution began.

After the final judgment in the main case, the records were remanded to the trial court. When a boundary controversy arose during execution, the trial court approved a relocation survey report submitted by the Department of Environment and Natural Resources. Banaga filed a notice of appeal, which the trial court denied; her motion for reconsideration was likewise denied. She then filed a special civil action for certiorari, prohibition and mandamus with the Court of Appeals, which issued a temporary restraining order but ultimately dismissed the petition. From that dismissal she came to the Supreme Court by petition for review on certiorari under Rule 45.

Facts

After the judgment in the main case became final, the trial court issued a writ of execution and a writ of possession, and Damalerio was placed in possession of Lot 2-G-2, which he fenced with galvanized iron sheets. Damalerio then moved for a special order of demolition of a structure said to stand within that lot. Banaga objected, insisting that the structure stood on Lot 2-G-1, the adjacent property retained by her. The two lots had once formed part of a bigger parcel subdivided in the 1960's.

Because the parties' own surveyors submitted conflicting reports, both agreed that a relocation survey be conducted by the survey team of the Department of Environment and Natural Resources, and both agreed to abide by and honor its findings. The survey, conducted in January 2000, reported that Lot 2-G-1 had encroached on Lot 2-G-2 by some 136 square meters. Banaga then filed an urgent omnibus motion asking for a verification survey, but the trial court, without ruling on that motion, took the surveyor's testimony and later approved the survey report.

Banaga filed a notice of appeal from the order approving the report. The trial court denied the notice of appeal, and denied her motion for reconsideration. She alleged that the survey was based on altered lot data computations and that approving it would move the boundaries of her lot and take a portion of it. The Court of Appeals dismissed her special civil action, holding that the boundary question was incidental to execution, that no appeal lay under the Rules, and that she was bound by her agreement to respect the survey report.

Issues

• Whether or not the trial court correctly denied Banaga's notice of appeal from the order approving the survey report, notwithstanding her claim that the order varied the terms of the final judgment.
• Whether or not an ordinary appeal, rather than a special civil action for certiorari, is the proper remedy to assail an order issued in the course of executing a final judgment where a factual review of the manner of execution is called for.
• Whether or not Banaga's agreement to abide by the findings of the survey team barred her from assailing the survey report on grounds of fraud.
• Whether or not the petition should be dismissed for an alleged violation of the rule on proof of service.

Applicable Provisions

Section 1 of Rule 41 of the Rules of Court, as it stood under the 1997 Rules, 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 (f) An order of execution; x x x x.

This is the provision the Court of Appeals relied on in holding that the order approving the survey report, being an incident of execution, could not be appealed.

Article 1171 of the Civil Code provides:

Responsibility arising from fraud is demandable in all obligations. Any waiver of an action for future fraud is void.

This answers the argument that Banaga's agreement to honor the survey findings estopped her from raising fraud.

Ruling

On the first issue, the Court held that the trial court erred in denying the notice of appeal. The rule that no appeal lies from an order of execution is not absolute, because a party aggrieved by an improper or irregular execution is not without a remedy. The Court quoted with approval the exceptional circumstances enumerated in Limpin versus the Intermediate Appellate Court:

1) the writ of execution varies the judgment; 2) there has been a change in the situation of the parties making execution inequitable or unjust; 3) execution is sought to be enforced against property exempt from execution; 4) it appears that the controversy has never been subject to the judgment of the court; 5) the terms of the judgment are not clear enough and there remains room for interpretation thereof; or 6) it appears that the writ of execution has been improvidently issued, or that it is defective in substance, or is issued against the wrong party, or that the judgment debt has been paid or otherwise satisfied, or the writ was issued without authority.

In these exceptional cases, the aggrieved party may elevate the matter by appeal, or by a special civil action of certiorari, prohibition or mandamus.

On the second issue, the Court held that an ordinary appeal was the more proper and adequate remedy. Banaga's objection was that the survey would alter the boundaries and award to Damalerio a portion of her lot. Whether the survey findings are correct is ultimately a factual question, and the technical findings of the surveyor and the trial court's appreciation of them must undergo the scrutiny of the appellate process. To hold that certiorari is the sole and exclusive remedy would unduly restrict the remedy of a party prejudiced by an improper or illegal execution, since certiorari reviews jurisdiction or grave abuse of discretion, not errors of fact or law. The Court also held that a motion for reconsideration was not required before appealing, and that the trial court's failure to rule on the urgent omnibus motion meant it found her arguments without merit.

On the third issue, the Court held that while Banaga bound herself to abide by the survey findings, that waiver does not extend to future fraud, because any waiver of an action for future fraud is void. Her allegations of discrepancy and alteration in the lot data computations fall outside the waiver.

On the fourth issue, the Court declined to dismiss the petition on a mere technicality, since doing so would ignore the constitutional guarantee against deprivation of property without due process, and the Rules are to be liberally construed to secure a just, speedy and inexpensive disposition of every action.

Doctrine

No appeal may be taken from an order of execution as a general rule, but the rule is not absolute. Where the writ of execution varies the judgment, where the terms of the judgment are not clear, or where the writ is improvidently issued or defective in substance, the aggrieved party may elevate the matter by ordinary appeal or by a special civil action of certiorari, prohibition or mandamus. Where the challenge calls for a factual review of the manner of execution, ordinary appeal is the more proper and adequate remedy, because certiorari lies only for lack of or excess of jurisdiction or grave abuse of discretion. A party's agreement to abide by the findings of a survey team does not bar a later claim of fraud, for responsibility arising from fraud is demandable in all obligations and any waiver of an action for future fraud is void under Article 1171 of the Civil Code.

Disposition

The petition was granted; the Court of Appeals decision was reversed and set aside, the trial court's orders denying the notice of appeal were nullified, and the trial court was directed to give due course to Banaga's appeal and transmit the records to the Court of Appeals.

Remember This

The one line to memorize: no appeal from an order of execution is the general rule, but where the writ varies the judgment or the challenge is factual, ordinary appeal is the proper remedy. Examiners use this case to test the exceptions to the non-appealability of execution orders, and the rule that a waiver of future fraud is void.