HEIRS OF FABIO MASANGYA AND JOSE ABAYON, PETITIONERS, VS. DIOSDADO MASANGYA, ESTELITA M. BANTIGUE, FRANCISCO MASANGYA, TANCREDO MASANGYA AND PATRO­CINIO MASANGYA, RESPONDENTS.

By this petition for certiorari, petitioners seek to annul
and set aside the twin orders^[1]
issued by the Regional Trial Court, 6th Judicial Region, Branch 2, Kalibo, Aklan, on April 26, 1988
and June 29, 1988, in the case of “Fabio Masangya
and Jose Abayon, plaintiffs versus Diosdado Masangya, et al.,
defendants,” Civil Case No. 1535 for partition of real estate.^[2]

It appears from the pleadings submitted that on November 18, 1965, plaintiffs Fabio Masangya and
Jose Abayon filed a complaint for partition of real
estate against respondents (then defendants). 
During trial, Fabio died but he was substituted by his heirs (now
petitioners).  A decision was rendered on
September 21, 1982, in
favor of respondents, dismissing petitioners’ complaint and declaring the
respondents as the lawful owners of the land in question.

Not satisfied with the decision of the lower court, petitioners
appealed to the Court of Appeals, which on December 9, 1986, affirmed the questioned decision.  Thereupon, an Entry of Final Judgment was
issued by the Court of Appeals on October
21, 1987, upon motion of the prevailing party on the ground that no
appeal has been filed by the petitioners with this Court.

Subsequently, upon motion of respondents, the court a quo
issued the writ of execution. 
Petitioners filed a “Motion to Recall Order On
Issuance of Writ of Execution” on two grounds, namely, no proper
substitution of party and want of effective notice of decision to party
Jose Abayon by the appellate court.  Respondent trial court denied it in its Order
dated April 26, 1988.  Thereupon, movants filed a Motion for Reconsideration which said court
likewise denied in its Order dated June 29, 1988.^[3]

Hence, this petition.

Petitioners contend that there was no valid substitution of the
deceased plaintiff, Fabio Masangya, thus whatever
proceedings conducted thereafter is null and void for lack of jurisdiction, and
for which reason also, the decision of September 21, 1982 which they
(petitioners) appealed has no legal effect. 
Similarly, with the death of their counsel, Atty. Rufo
Venus during the pendency of their appeal,
petitioners also claim that the Decision of the Court of Appeals, for lack of
notice to the proper parties (petitioners), has not become final and executory, and correspondingly,
there is no entry of judgment to speak of and no writ of execution could
therefore issue.^[4]

Anent the first issue on the substitution of parties, records
show that the original plaintiffs in this case were Fabio Masangya
and Jose Abayon. 
Fabio died on December 21, 1971, while Abayon
is still alive.  During the hearing of
Civil Case 1535 on January 7, 1972, counsel for the plaintiffs, Atty. Rufo Venus, moved for the suspension of the trial to give
more time to file his motion for substitution of the deceased plaintiff, Fabio Masangya, and for which, the lower court, through Bienvenido Ejercito, then
presiding as the District judge gave Atty. Venus up to January 25, 1972 to file
his motion for substitution of parties. 
In compliance therewith, a motion for substitution of
plaintiff, Fabio Masangya, dated
February 15, 1972, was filed and consequently, an Order dated February 15,
1972, signed by Ejercito was issued granting the
motion and ordered that Fabio Masangya be substituted
by his heirs (now petitioners) namely: 
Federico, Arturo, Rodrigo, Carpio and Aelasar, all surnamed Masangya,
and Maura M. de Jose.^[5]
Trial on the merits proceeded with Atty. Venus presenting three (3) witnesses
for the plaintiffs, Jose Abayon and substituted
parties before it finally rested its case. 
Considering the foregoing, We see no error
committed by the trial court in the substitution of parties.

Furthermore, petitioner never raised the alleged legal infirmity
with the appellate court and even assuming that there was no valid substitution
made on the deceased Fabio Masangya, for
the petitioners to raise objection for the first time after appeal, and after
having participated in the trial of this case up to its resolution, cannot be
favored on the grounds of estoppel.  While lack of jurisdiction may be availed of
at any stage, a party’s active participation in the proceedings before the
court without jurisdiction will estop such party from
assailing such lack of jurisdiction.^[6]

Petitioners likewise allege that the appellate court sent the
notice of judgment to a dead person, Atty. Venus, their counsel.  They argue that there was no effective notice
in law given by the appellate court.  The
argument is untenable.  While it may be
true that the notice of judgment was sent to Atty. Venus, the Court of Appeals
still sent a notice to petitioners after having been duly notified by
respondents’ counsel.  Records reveal that petitioners were sent a
notice of judgment of the decision dated December 9, 1986, which was received
by them on March 24, 1987 per letter dated March 26, 1987 of petitioners.  The letter is quoted hereunder, to wit:

“REPUBLIC OF
THE PHILIPPINES
COURT OF APPEALS
MANILA

FABIO MASANGYA, et
al.                                                                                                         CA-G.R.
CV-00782

Plaintiffs-Appellants,

– versus
–

DIOSDADO
MASANGYA, et al.

Defendants-Appellees.

x——————————————————————————————————————————————————————x

March 26, 1987

Atty.
Adelaida C. Reyes

Division
Clerk of Court

Court
of Appeals

Manila

Madam:

Please take notice that we are
in receipt of the notice of judgment and copy of the decision of
the above-entitled case on March 24, 1987. 
In this connection, I should like to inform your good office that our
lawyer, Atty. Rufo L. Venus, died and since we are
intending to appeal this decision of the Honorable Court of Appeals, we are
looking for another lawyer to handle our case.

Very truly yours,

FABIO MASANGYA, et al.

Plaintiffs-Appellants

By:

JOSE ABAYON.”

(underscoring
supplied; p. 88, Rollo of CA-­G.R. CV-00782)

Well-settled is the rule that a notice of judgment rendered in
the case served on counsel of record is, for all legal purposes, notice to the
client, the date of receipt of which is considered the starting point from
which the period for appeal prescribed by law shall begin to run.^[7]
And where counsel is already dead before rendition of judgment, the court may
order that notice of decision be sent to the proper party,
otherwise, a final and executory judgment may be set
aside for lack of due process of
law.^[8]
However, in the case at bar, it is crystal clear that petitioners had all the
opportunity to file a motion for reconsideration
in the Court of Appeals or an appeal to this Court in view of having actually
received the notice of judgment of the Court of Appeals but failed to do
so.  The subsequent entry of judgment on
October 21, 1987 of the December 9, 1986 decision was valid.  Their plea, therefore, that they were not
accorded the right to procedural due process cannot elicit either approval or
sympathy.  The denial of their motion for the recall of the writ of
execution cannot be stigmatized as contrary to law.

PREMISES CONSIDERED, the petition
is hereby DISMISSED.

SO ORDERED.

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

Sarmiento, J., on leave.

^[1]
Penned by Judge Amalia Resterio-Andrade

^[2]
p. 2, Rollo

^[3]
p. 3, Rollo

^[4]
p. 8, Rollo

^[5]
p. 7, Rollo

^[6]
Echaus vs. Blanco, G.R. No. 30453, December 4, 1989

^[7]
Baquiran vs. C.A., L-14551, July 31, 1961, 2 SCRA 873 (En Banc) Natividad, J.:  Damasco vs. Arrieta,
L-18879, Jan. 31, 1963, 4
SCRA 224, 235 (En Banc) Labrador, J.:  Jalover vs. Ytoriaga, L-35989, Oct.
28, 1977, 80 SCRA 100, 106 (Second Div.) Castro, C.J.:  Cubar vs.
Mendoza, 55035, Feb. 23, 1983,
120 SCRA 768, 772 (Second Div.) de Castro, J.

^[8]
Rueda vs.
Luluquisin, L-13764, Jan. 30, 1960, 57 O.G. (No. 29) 5238 (En Banc) Bautista Angelo, J.