DOLORES DELOS SANTOS, NICOLAS DELOS SANTOS AND RICARDO DELOS SANTOS, PETITIONERS, VS. HON. JUDGE CAMILO MONTESA, JR. AND JUANA DELOS SANTOS, RESPONDENTS.

In the suit for desahucio initiated below by herein
private respondent against petitioners, the court of origin ordered petitioners
to vacate the lot in question, to pay P5,000.00 per year as reasonable rental
from 1985 until possession is surrendered, and to pay P1,000.00 as attorney’s
fees and the costs of the suit (pp. 37-38, Rollo). Upon appeal, Branch XIX of the Regional Trial Court of the Third
Judicial Region stationed in Malolos and presided over by herein respondent
judge, granted private respondent’s motion for execution pending appeal on
account of petitioners’ failure to post a supersedeas bond (p. Rollo). To set aside the proceedings below, the
petition at hand was instituted anchored on the supposition that petitioners
were deprived of their day in court.

Petitioners’ mental distress started when private respondent, who
supposedly owns Lot 39 of the Cadastral survey of Bustos with an area of 5,358
square meters covered by Original Certificate of Title No. 0-7924 a portion of
which petitioners entered and occupied, lodged the complaint geared towards
petitioners’ eviction. Summons was
served through the mother of petitioners when the process server was unable to
locate Dolores, Nicolas, and Ricardo delos Santos in Talampas, Bustos,
Bulacan. For failure of petitioners to
submit the corresponding answer, judgment was rendered pursuant to the rules on
summary procedure (pp. 2-3, Decision; pp. 37-38, Rollo).

Upon learning of said decision, petitioners sought to reconsider
on the principal thesis that they were never served notice of the conciliation
meeting at the barangay level, as well as the summons. They insist that private respondent was
referring to a different piece of realty because petitioners actually occupied
Lot No. 3568 owned by Nicolas delos Santos under Original Certificate of Title
No. F-10418. Moreover, petitioners
advanced the proposition that Dolores’ husband should have been impleaded. All of these arguments were to no avail. As indicated earlier, execution pending
appeal was ordered due to petitioners’ failure to post a supersedeas bond.

To stave off the impending eviction of petitioners, this Court
issued a restraining order on April 28, 1986 directed against the reviewing
authority and private respondent until further orders (p. 52, Rollo).

At first blush, it would appear that the recourse pursued by
petitioners could elicit a favorable response from us in as much as the proof
of service of the summons upon petitioners does not indicate impossibility of
personal service, a condition precedent for resorting to substituted
service. Even then, and assuming in
gratia argumenti that the statutory norms on service of summons
have not been strictly complied with, still, any defect in form and in the
manner of effecting service thereof were nonetheless erased when petitioners’
counsel moved to re-examine the impugned decision and posed a subsequent bid on
appeal to impede immediate execution (Boticano vs. Chu, Jr.,
148 SCRA 541 [1987]); 1 Regalado, Remedial Law Compendium, 1988 Fifth
Rev. Ed., p. 136). Indeed, such
demeanor is tantamount to voluntary submission to the competencia of the
court within the purview of Section 23, Rule 14 of the Revised Rules of Court
since any mode of appearance in court by a defendant or his lawyer is
equivalent to service of summons, absent any indication that the appearance of
counsel for petitioner was precisely to protest the jurisdiction of the court
over the person of defendant (Carballo vs. Encarnacion, 49
O.G. 1383; 1 Regalado, supra, p. 144; Flores vs. Zurbito,
37 Phil. 746 [1918]; 1 Martin, Rules of Court in the Philippines, 1989
Rev. Ed., p. 473; Sison, et al. vs. Gonzales,
50 O.G. 4756; 1 Moran, Comments on the Rules of Court, 1970 Ed., p.
467).

Neither can We treat the motion for reconsideration directed
against the unfavorable disposition as a special appearance founded on the sole
challenge on invalid service of summons since the application therefor raised
another ground on failure to state a cause of action when conciliation
proceedings at the barangay level were allegedly bypassed, nay, disregarded (Republic
vs. Ker and Co., Ltd., 64 O.G. 3761; Regalado,
supra, p. 152).

The fact that petitioners are supposedly occupying a parcel of
land other than the realty claimed by private respondent deserves scant
consideration since a clarification on a factual query of this nature is
proscribed by the second paragraph, Section 2 of Rule 45 of the Revised Rules
of Court. Verily, counsel for
petitioners’ assertion in the notice of appeal filed with respondent judge that
the grievance to be elevated to this Court will focus “fully on a question
of law” (p. 32, Rollo) is a self-defeating posture and operates as a legal
bar for us to dwell into the truth or falsehood of such factual premise (Article
1431, New Civil Code; Section 4, Rule 129; Section
2(a), Rule 131, Revised Rules on Evidence).

Petitioners argue next that execution pending appeal was ordered
without any prior notice to them (p. 3, Petition; p. 7, Rollo). This notion is also devoid of substance
since it erroneously suggests that the court is duty-bound to notify
petitioners of the immediate enforcement of the appealed decision. A contrario, it is the
prevailing party moving for execution pending appeal under Section 2, Rule 39
of the Revised Rules of Court who is obliged to serve a copy of such motion on
the adverse party’s counsel, which, on the face of the subject motion, was
effected personal delivery (p. 23, Rollo; Lao vs. Mencias,
21 SCRA 1021 [1967]; 2 Martin, Rules of Court in the Philippines, 1973
Ed., p. 288).

In fine, petitioners may not press the idea that they were
deprived of their day in court amidst the implicit forms of waiver performed by
their lawyer in submitting every conceivable defense for petitioners via
the two motions for reconsideration below.

WHEREFORE, the petition is hereby DISMISSED for lack of
merit and the restraining order issued on April 28, 1986 LIFTED.

SO ORDERED.

Feliciano, (Acting Chairman), Bidin, Davide, Jr., and Romero, JJ., concur.