This case has been cited 5 times or more.
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2009-10-12 |
CARPIO, J. |
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| A writ of possession is generally understood to be an order whereby the sheriff is commanded to place a person in possession of a real or personal property.[15] A writ of possession may be issued under the following instances: (1) land registration proceedings under Section 17 of Act 496; (2) judicial foreclosure, provided the debtor is in possession of the mortgaged realty and no third person, not a party to the foreclosure suit, had intervened; and (3) extrajudicial foreclosure of a real estate mortgage under Section 7 of Act 3135, as amended by Act 4118 (Act 3135).[16] This case involves the third instance. Under Section 7 of Act 3135, a writ of possession may be issued either (1) within the one year redemption period, upon the filing of a bond, or (2) after the lapse of the redemption period, without need of a bond[17] or of a separate and independent action.[18] This is founded on the purchaser's right of ownership over the property which he bought at the auction sale and his consequent right to be placed in possession thereof.[19] However, this rule admits of an exception, that is, Section 33 (former Section 35) of Rule 39 of the Revised Rules of Court, which provides that the possession of the mortgaged property shall be given to the purchaser "unless a third party is actually holding the property adversely to the judgment obligor."[20] We quote section 33, to wit: Sec. 33. Deed and possession to be given at expiration of redemption period; by whom executed or given. --If no redemption be made within one (1) year from the date of the registration of the certificate of sale, the purchaser is entitled to a conveyance and possession of the property; or, if so redeemed whenever sixty (60) days have elapsed and no other redemption has been made, and notice thereof given, and the time for redemption has expired, the last redemptioner is entitled to the conveyance and possession; but in all cases the judgment obligor shall have the entire period of one (1) year from the date of the registration of the sale to redeem the property. The deed shall be executed by the officer making the sale or by his successor in office, and in the latter case shall have the same validity as though the officer making the sale had continued in office and executed it. | |||||
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2006-01-31 |
QUISUMBING, J. |
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| An order issuing a writ of possession is an order where the sheriff is commanded to place a person in possession of a real or personal property. To a purchaser in an auction sale, be it foreclosure or execution, a writ of possession is merely a ministerial function.[23] In it the Court neither exercises its official discretion nor judgment. Being a ministerial function and summary in nature, it is not a judgment on the merits, but simply an incident in the transfer of title. Hence, under such circumstances, a separate case for annulment of the sale cannot be barred by res judicata.[24] | |||||
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2005-06-08 |
CALLEJO, SR., J. |
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| Third. The procedure in a motion for the issuance of a writ of possession is ex parte and summary in nature. It is a proceeding brought for the benefit of one party only and without notice by the court to any person adverse of interest. It is a proceeding wherein relief is granted without an opportunity for the person against whom the relief is sought to be heard.[32] The issuance of a writ of possession is not a judgment on the merits.[33] Thus, the HLURB may grant the motion even in the absence of the judgment obligor, herein petitioner. | |||||
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2005-04-26 |
YNARES-SANTIAGO, J. |
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| d.] AWARDED MORAL DAMAGES IN FAVOR OF RESPONDENTS.[17] Petitioner claims that the Court of Appeals erred in sustaining the trial court's order consolidating Civil Case No. 53967 with LRC Case No. R-3951, arguing that consolidation is proper only when it involves actions, which means an ordinary suit in a court of justice by which one party prosecutes another for the enforcement or protection of a right, or a prevention of a wrong. Citing A.G. Development Corp. v. Court of Appeals,[18] petitioner posits that LRC Case No. R-3951, being summary in nature and not being an action within the contemplation of the Rules of Court, should not have been consolidated with Civil Case No. 53967. | |||||
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2003-08-15 |
YNARES-SANTIAGO, J. |
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| A writ of possession is generally understood to be an order whereby the sheriff is commanded to place a person in possession of a real or personal property, such as when a property is extrajudicially foreclosed.[8] In cases of extrajudicial foreclosure sales of real estate mortgage, the issuance of a writ of possession is governed by Section 7 of Act No. 3135, which provides:Sec. 7. In any sale made under the provisions of this Act, the purchaser may petition the [Regional Trial Court] of the province or place where the property or any part thereof is situated, to give him possession thereof during the redemption period, furnishing bond in an amount equivalent to the use of the property for a period of twelve months, to indemnify the debtor in case it be shown that the sale was made without violating the mortgage or without complying with the requirements of this Act. Such petition shall be made under oath and filed in form of an ex parte motion in the registration or cadastral proceedings if the property is registered, or in special proceedings in the case of property registered under the Mortgage Law or under section one hundred and ninety-four of the Administrative Code, or of any other real property encumbered with a mortgage duly registered in the office of any register of deeds in accordance with any existing law, and in each case the clerk of the court shall, upon the filing of such petition, collect the fees specified in paragraph eleven of section one hundred and fourteen of Act Numbered Twenty-eight hundred and sixty-six, and the court shall, upon approval of the bond, order that a writ of possession issue, addressed to the sheriff of the province in which the property is situated, who shall execute said order immediately. The above provision explicitly authorizes the purchaser in a foreclosure sale to apply for a writ of possession during the redemption period by filing an ex parte motion under oath for that purpose in the corresponding registration or cadastral proceeding in the case of property with Torrens title. Upon the filing of such motion and the approval of the corresponding bond, the law also in express terms directs the court to issue the order for a writ of possession.[9] | |||||