ZENAIDA M. PALMA, PETITIONER, VS. HONORABLE COURT OF APPEALS AND PRODUCTS, INC., RESPONDENTS.

This is a petition for review on certiorari under Rule 45 of
the Revised Rules of Court of the decision of the Court of Appeals, affirming in
toto the decision of the Court of First Instance of Manila in Civil Case
No. 69208.

We deny the petition.

I

Reynaldo S. Palma and his wife, Zenaida, purchased from private respondent
two Hino Diesel Trucks at a price of P52,056.00 each or a total purchase price
of P104,112.00, payable in installments. The Palmas executed two promissory notes in favor of private respondent
in the total amount of P104,112.00. It
was stipulated therein: (1) that each
of the two promissory notes was payable in 24 equal monthly installments with
interest of 12% per annum on all unpaid installments; (2) that the debtors
should pay attorney’s fees and other expenses of collection in the event that
said collection was made through a lawyer; and (3) that the acceleration clause
would become operative in case of default in the payment of any installment and
make the subsequent installments due and demandable. A chattel mortgage over the two trucks was constituted in favor
of private respondent.

The Palmas only made an initial payment and failed to pay the
succeeding installments despite demands made on them. Hence, on April 14, 1967, private respondent filed a complaint with prayer for the
issuance of a writ of preliminary attachment.

On April 19, the trial court issued an order of attachment
against the property, both real and personal, of the Palmas.

Subsequently, on June 5, copies of the summons, order of
attachment and attachment bond were served upon the Palmas at their residence
in Barrio Putol, Kawit, Cavite through Bella Samson, who refused to acknowledge
the receipt of the documents.

On June 8, the special sheriff was able to attach one of the
trucks purchased from private respondent (Rollo, p. 65; Record on Appeal, p.
11). On the other hand, the dismantled
parts of the other truck were recovered in San Pablo City by private respondent
(Rollo, p. 65; Record on Appeal, p. 27). The special sheriff was also able to attach the property of the Palmas
located in Barrio Putol, Kawit, Cavite and covered by TCT No. T-14464. The attachment was duly annotated on the
said title on June 13 (Rollo, p. 65; Record on Appeal, p. 66).

For failure to file their answer and upon motion of private
respondent, the Palmas were declared in default on August 26. Private respondent presented its evidence ex
parte.

On September 1, the Palmas sold the attached property located at
Barrio Putol, Kawit, Cavite to Fernando and Constancia Cresini (Rollo, p. 65;
Record on Appeal, p. 106).

In due time, the trial court rendered its decision against the
Palmas, the dispositive portion of which reads as follows:

“WHEREFORE, the Court hereby renders judgment ordering the
defendant-spouses Zenaida M. Palma and Reynaldo S. Palma to pay, jointly and
severally, to the plaintiff?corporation the sum of P99,931.71 with
interest thereon at the rate of 12% per annum starting February 10, 1967 until
fully paid; the sum of P2,040.58 representing the premium paid for the
attachment bond plus the sum of P1,500.00 as attorney’s fees and the
costs” (Rollo, p. 65; Record on Appeal, p. 17).

A writ of execution dated December 14, was issued and duly served
on the Palmas but the same was returned unsatisfied (Rollo, p. 65; Record on
Appeal, p. 56).

On December 29, the Palmas filed a Petition for Relief from
Judgment with the trial court,
alleging that they failed to file an answer
because a copy of the complaint was served on a third party, who failed
to give the same to them. They prayed
that a preliminary injunction be issued, restraining the enforcement of the
decision and that after due hearing the decision be set aside and a new trial
be held (Rollo, p. 65; Record on Appeal, p. 21).

In its Order dated January 9, 1968, the trial court denied the
Petition for Relief from Judgment for lack of merit (Rollo, p. 65; Record on
Appeal, p. 35). The motion for
reconsideration of said order was likewise denied by the trial court in its
order dated February 21, 1968 (Rollo, p. 65; Record on Appeal, p. 50). Thereafter, an alias writ of
execution was issued.

On August 27, the property located at Barrio Putol, Kawit, Cavite
was sold at a public auction for P15,000.00 in favor of private respondent as
the highest bidder (Rollo, p. 65; Record on Appeal, p. 61). After the lapse of the one-year redemption
period with the property still unredeemed, the special sheriff executed the
Sheriff’s Deed of Absolute Sale and had the same registered with the Register
of Deeds of Cavite on December 3 (Rollo, p. 65; Record on Appeal, p. 74).

On May 7, 1970, an Ex–Parte Motion for Confirmation
of Sheriff’s Sale was filed by private respondent but this was denied by the
trial court for failure to give notice to the interested parties (Rollo, p. 65;
Record on Appeal, p. 80). Another Motion for Confirmation of Sheriff’s
Sale, this time with notice to all interested persons, was filed by private
respondent (Rollo, p. 65; Record on Appeal, pp. 81-83). The Palmas opposed said motion (Rollo,
p. 65; Record on Appeal, pp. 84-85).

On August 12, the trial court issued an Order confirming the
Sheriff’s Deed of Sale (Rollo, p.
65; Record on Appeal, p. 99). The
Palmas filed a motion for reconsideration, contending that the attached
property had already been registered in the name of the Cresinis and therefore,
the attachment and sale of the same deprived the new owners of their right to
due process of law (Rollo, p. 65;
Record on Appeal, p. 111). The motion
was denied (Rollo, p. 65; Record on Appeal, p. 115).

Consequently, the Palmas appealed to the Court of Appeals.

On June 18, 1976, the Court of Appeals rendered its decision, the
dispositive portion of which reads:

“WHEREFORE, in view of the foregoing and finding no reversible
error in the decision appealed from, the same is hereby affirmed in toto. With costs against the
appellants” (Rollo, p. 38).

Reynaldo S. Palma died during the pendency of this case in the
Court of Appeals; hence this petition was filed solely by Zenaida M. Palma
(Rollo, p. 16).

II

Petitioner contends that there was no proper service of summons
upon her person, resulting to a
denial of her right to due process of law.

We do not agree. The
trial court in its Order dated January 9, 1968 noted:

“It is claimed by petitioner Zenaida M. Palma in her
‘affidavit of merit’ dated December 28, 1967, attached to the petition for
relief dated September 28, 1967, that the complaint in this case was received
by ‘her niece, who was of minor age’ who left those papers in the drawer of
their small table and that when she saw it, the period to answer the complaint
had long expired. In her testimony
before this Court, she declared that the summons and complaint were received by
her son, Manolito Palma who left the papers in a drawer and she found it only
on June 1967, and that she went immediately to the Office of the Plaintiff where she allegedly told Mrs. Ferro that she
will return the two trucks. This material
inconsistency of the statement of the petitioner renders improbable her
claim” (Rollo, p. 65; Order, p. 32).

In addition thereto, we find that petitioner had voluntarily
submitted to the jurisdiction of the trial court when she filed her petition
for relief from judgment (J. M. Tuason & Co., Inc. v. Estabillo, 62 SCRA 1 [1975]) praying that a preliminary
injunction be issued restraining plaintiffs from enforcing the judgment upon
the filing of a bond and that after due hearing a new trial be held on the
merits of the case (Rollo, p. 65; Record
on Appeal, pp. 20-21).

When the appearance
is by motion for the purpose of objecting to the jurisdiction of the court over
the person, it must be for the sole and separate purpose of objecting to said
jurisdiction. If the appearance is for
any other purpose, the defendant is deemed to have submitted himself to the jurisdiction of the court. Such an appearance gives the court
jurisdiction over the person (Flores v. Zurbito, 37 Phil. 746 [1918]). We
have likewise ruled that even
though the defendant objects to the jurisdiction of the court, if at the same
time he alleges any non-jurisdictional ground for dismissing the action, the
court acquires jurisdiction over
him (Far East International
Import & Export Corporation v.
Nankai Kogyo, Co., Ltd., 6 SCRA 725 [1962]).

Petitioner further contends that the trial court erred in
rendering judgment for the entire amount of the purchase price of the two
trucks attached by private respondent, without deducting the value thereof.

Article 1484 of the Civil Code provides:

“In a contract of sale of personal property the price of which
is payable in installments, the vendor may exercise any of the following
remedies:

(1) Exact fulfillment of the obligation, should
the vendee fail to pay;

(2) Cancel the sale,
should the vendee’s failure to
pay cover two or more
installments;

(3) Foreclose the
chattel mortgage on the thing sold, if one has been constituted, should the
vendee’s failure to pay cover two or more installments. In this case, he shall have no further
action against the purchaser to recover any unpaid balance of the price. Any agreement to the contrary shall be
void.”

In the case at bench, private respondent opted for the first
remedy provided by the law and brought an action for collection of the unpaid
balance, with prayer for an issuance of a
writ of preliminary attachment. It did not elect to cancel the sale or resort to a foreclosure of the chattel mortgage. A judgment in an action for specific performance, as in this
case, may be executed on all personal and real properties of the vendee which
are not exempt from execution and which are sufficient to satisfy such
judgment.

The mere fact that private respondent secured possession of the
trucks through an attachment did not necessarily mean that it would resort to a
foreclosure of the mortgage (Universal Motors Corporation v. Dy Hian Tat, 28 SCRA 161
[1969]). Since there was no showing of
the valuation of the trucks when attached
or that they were eventually sold at a public auction, therefore, no value can
be deducted from the purchase price.

Petitioner further questions the validity and legality of the
issuance of the writ of execution, the subsequent sale at a public auction and
the confirmation of sale of her real property.

It will be noted that petitioner failed to file within the
reglementary period an appeal from the Decision dated September 29, 1967 of the
trial court. When petitioner filed her
petition for relief from judgment, the decision of the trial court had long
become final and executory.

Section 1, Rule 39 of the Revised Rules of Court provides:

“Execution upon final judgment or orders. — Execution shall issue upon a judgment or
order that finally disposes of the action or proceeding. Such execution shall issue as a matter of
right upon the expiration of the period to appeal therefrom if no appeal has
been perfected.”

It is basic that once a judgment becomes final, the prevailing
party is entitled, as a matter of right, to a writ of execution, and the
issuance thereof is the Court’s ministerial duty (Adlawan v. Tomol, 184 SCRA 31
[1990]).

The failure of petitioner to redeem the property after the
expiration of the redemption period vests title over the property to private
respondent. Unlike in a foreclosure
sale, there was no need to confirm the sale on execution (Revised Rules of
Court, Rule 39, Section 24).

Records show that the notice of attachment over petitioner’s real
property was registered as early as June 13, 1967; while the sale of the same
property to the Cresinis was on September 1, 1967. An attachment is a proceeding
in rem against a
particular property and the attaching creditor acquires a specific lien upon
the attached property, which may ripen into a judgment against the res
when the order of sale is made (Civil Code of the Philippines, Art. 2242 [7];
Revised Rules of Court, Rules 39 and 57; Santos v. Aquino, Jr., 205 SCRA 127
[1992]; Vda. de Carvahal v. Coronado, 18 SCRA 635 [1966]).

Lastly, petitioner contends that her motions dated July 8, 1976
and July 20, 1976 were not acted upon by the appellate court in violation of
her right to due process of law. Such
contention is unfounded. The
aforementioned motions were in fact acted upon by the appellate court in its
Resolution dated August 3, 1976 (Rollo, p. 113; Brief for Private Respondent,
p. 42).

WHEREFORE, the petition is DENIED and the
decision of the Court of Appeals is AFFIRMED
in toto.

SO ORDERED.

Davide, Jr., (Acting Chairman), Bellosillo, and Kapunan, JJ., concur.

Cruz, J., (Chairman), on leave.