TEOFILO MAGNO, ISIDRO CABATIC, HERMINIO CABATIC, FELICITAS CABATIC, ASSISTED BY HER HUSBAND, JOSE CARINO, TOMAS MAGNO, ELPIDIO MAGNO, AURORA MAGNO, ASSISTED BY HER HUSBAND, ODEL…

This is a special civil action for Certiorari seeking to
declare void ab initio the Resolution of respondent Court of
Appeals dated September 22, 1981 which ordered the issuance of an Entry of
Judgment in CA-G.R. No. 52655-R.  The
petition also prays for the issuance of a preliminary injunction to temporarily
maintain the status quo by ordering the provincial sheriff of the
province of Pangasinan to desist from enforcing the writ of execution issued in
Civil Case No. A-413 pursuant to the said Entry of Judgment.

Civil Case No. A-413 is an action for Partition of Cer­tain
Properties and for Damages, filed by private respondents against petitioners in the Court of First
Instance of Pangasinan, Branch VII thereof. 
In a Decision* dated October 5, 1972, the lower court
ordered the partition of the properties subject of the complaint in accordance
with the schedule there­in appearing.  It
also ordered the petitioners to pay jointly and severally unto the private
respondents the amount of P3,000.00 as attorney’s fees.

Petitioners appealed to
the Court of Appeals which appeal was docketed as CA-G.R. No. 52655-R.  On June 30, 1981, the said court
promulgated its Decision**
affirming the decision of the lower court.

Notice of the decision
was sent to petitioners’ counsel Atty. Atinidoro B. Sison at his given mailing
address which is 33 BMA Ave., Tatalon, Quezon City.  The same, however, was returned to the court
with the certification of the postmaster – “Return to sender, Reason –
moved.”

On September 14, 1981,
respondent Court of Appeals issued the following Resolution: –

“Considering that the copy of Decision dated June 30, 1981
addressed to Atty. Ati­nidoro B. Sison fo 33 BMA Tatalon, Quezon City, counsel
for the appellants was returned unclaimed with the notation on the envelope
“MOVED”, the Court Resolved to resend the said copy of the Decision
to the appellants themselves at Alaminos, Pangasinan, and the appellants are
hereby informed that the fifteen (15) days period within which to file for
reconsideration will be counted from the receipt of the decision herewith
attached.  (Annex “5-A” p. 54,
Rollo)

A copy of this Resolution was sent to petitioners themselves
addressed as follows – Mr. Teofilo Magno et al., Patri­cio, Alaminos,
Pangasinan.  It is not disputed that this
add­ress is the address on record of petitioners.  But again the envelope addressed to them was
returned to the court with the notation – deceased.

On September 22, 1981,
the respondent court issued its now assailed Resolution ordering the issuance
of the entry of judgment.

Petitioners’ motion for reconsideration was denied hence, they
filed the present petition, which We find to be without merit.

It is well-settled that when a party is represented by counsel,
notice should be made upon the counsel of record at his given address to which
notices of all kinds emanating from the court should be sent in the absence of
a proper and ade­quate notice to the court of a change of address.  (Cubar vs. Mendoza, 120 SCRA 768).

In the case now before Us, the records show that the notice and
copy of the decision of respondent Court of Appeals were sent to petitioners’
counsel of record Atty. Atinidoro E. Sison at his given mailing address which
is 33 B.M.A. Avenue, Tatalon, Quezon City. 
The first notice to him by the Postmaster to claim his mail was on July
9, 1981.  The rule is that service of
notice becomes effective at the expiration of the five-day period upon failure
of the addressee to claim his mail within five (5) days from the date of first
notice (Sec. 8, Rule 13 Rules of Court (Feraren vs. Santos, 113 SCRA 707).  Therefore in this case the service became
effective five days after July 9, 1981 which is July 14, 1981.  The decision became final on August 13,
1981.  A xerox copy of the said envelope
properly addressed appears on page 52 of the Rollo.  This fact is further shown by the
certification issued by the then Acting Clerk of the Court of Appeals, Atty.
Cesar M. Marzan.  (p. 51, Rollo).  If Atty. Sison moved to another address
without informing the respondent of his change of address the omission or
neglect will not stay the finality of the decision.  The notice sent to petitioners themselves,
under the circumstances is not even necessary. 
(Francisco vs. Puno, 108 SCRA 427)
It may be stated though that while petitioners claim that Teofilo Magno
to whom the notice to the petitioners was addressed is already dead, it is not
explained why their present petition before this Court still includes the name
Teofilo Magno.  There is no indication in
the record that he has been duly substituted by his legal representative.

The decision in this case having become final on July 29, 1981, there being no appeal taken
therefrom, respondent court committed no error in issuing its resolution dated
Sep­tember 22, 1981 ordering the issuance of the corresponding entry of
judgment.

WHEREFORE, for lack of merit, this petition is hereby
DISMISSED.  The restraining order earlier
issued is lifted.

SO ORDERED.

Yap, (Chairman), Melencio-Herrera, Padilla, and Sarmiento, JJ., concur.

* Penned by Judge Magno B. Pablo

** Penned by Justice Porfirio V.
Sison, and concurred in by Justices
Elias B. Asuncion and Juan A.
Sison.