PERFECTO, J.:

The validity of a decision rendered on March 24, 1944, granting Simeon D. Luz divorce from his wife Soledad Peña, is in issue in this case.

On September 26, 1940, Simeon D. Luz married Soledad Peña in Manila, where they established their conjugal abode. On July 11, 1941, their son Cesar was born.

Alleging that on July 20, 1941, his wife abandoned him, by leaving him and going to her mother at SInait, Ilocos Sur, and that all his efforts to make her return proved fruitless, Luz filed in the Court of First Instance of Leyte on September 22, 1943, a complaint seeking divorced under the provisions of Executive Order No. 141 issued on March 25, 1943, by the CHairman of the Philippine Executive Commission pursuant to the authority conferred upon upon him by the commander in chief of the imperial Japanese forces in the Philippines and with the approval of the latter, which repealed and superseded Act No. 2710 of the Philippine Legislature.

Soledad Peña was served at Sinait with summons togehter eith the copy of the complaint on January 20, 1944. On January 13, she filed a motion to dismiss the complaint on the ground of lack of jurisdiction of the court over the subject matter. The motion was denied in an order issued by Judge Froilan Bayona on April 1, 1944, copy of which was received by defendant's attorney on May 12, and on the same date on attorney deposited in the mail an answer to the complaint, addressed to the court in Leyte where it was received only on June 23, having been in transit for one month and eleven days.

On August 19 same attorney filed a petition praying for the wife's alimony pendente lite in the amount of P250 a month. As no order disposing of said petition had as yet been received, defendant's attorney on October 2, 1945, file anex parte motion asking for a copy of any order that might have been issued concerning the alimony pendente lite prayed for. On October 23, 1945, Judge Fernando Hernandez issued an order denying the ex parte motion on the ground that the case had been decide since March 24, 1944, and that it does not appear that the decision has ever been set aside. Defendant's attorney receieved copy of the order on November 7, 1945, and on the same date he filed a motion, accompanied with affidavits, praying that the decision be set aside, that defendant's answer to the compalaint be admitted, and that defendant be granted alimony pendente lite, said attorney alleging under oath that it was only on said date that he happened to know about the existence of the decision in question. ON February 9, 1946, defendant's motion was denied by JUdge Fernando Hernandez.

Upon receipt of said order of denial, defendant's attorney filed on March 1, 1946, a motion praying for trial on the merits, and insisting that the decision rendered on March 24, 1944, is a nullity, having been rendered without granting defendant her day in court. The motion was denied on April 13; hence, the petition noe under our consideration.

From the lower court's answer, signed by Judge Mariano C. Melendres, it appears that Atty. Emilio Benitez, now Judge of First Instance of Samar, on behlaf of plaintiff filed on February 24, 1944, a motion to declare defendant in default for failure to file her answer. On February 26, Judge Vicente de la Cruz postponed the consideration of the motion to declare defendant in default "in view of the fact that hte telegram that was received by the clerk of court of Tacloban from the Sheriff of Vigan is not very clear and it may be said that the defendant has filed an answer and was mailed."

On March 18, 1944, three days after receipt of the sheriff's return to the effect that the defendant was summoned on January 20, Judge Froilan Bayona issued an order declaring defendant in default and authorizing plaintiff to adduce evidence.

There is no question that when the motion to declare defendant in default was filed on February 24, the consideration of which was postponed on February 26, and finally granted on March 18, and when the decision was rendered on March 24, 1944, defendant's petition to dismiss sent from Ilocos Sur since January 31 was transit and must have been received between the date of the decision and April 1, 1944, when the order denying it was issued

This case has been submitted for decision upon the above facts gathered fro m the allegations and exhibits of petitioner and Judge Mariano C. Melendres, of the Court of FIrst Instance of Leyte; but are not in a position to render decision in view of petitioner's noncompliance with provisions of section 5 of Rule 67 of the Rules of Court.

"SEC. 5. Defendants and costs in certain cases. When the petition filed relates to the acts or omissions of a court or judge, the petitioner shall join, as parties defendant with such court or judge, the person or persons interested in sustaining the proceedings in the court; and it shall be the duty of such person or persons to appear and defend, both in his or their behalf and in behalf of the court or judge affected by the proceedings, and costs awardedin such proceedings in favor of the petitioner shall be aginst the person or persons in interest only, and not against the court of judge."

Although the omission has not been questioned by respondent lower court, and Judge Melendres, in alleging in his answer that plaintiff Simeon D. Luz can not be located and his former attorney
has no interest in the case, appears to have waived his right to question the petition for noncompliance with section 5 of Rule 67, as the decision may adversely affect said plaintiff, it is in the interest of justice that he be given an opportuniy to be heard in this case.

The court, therefore, resolved that in accordance with section 6 of Rule 67 and section 16 of Rule 7 plaintiff Simeon D. Luz be declared joined as party respondent.

He may answer the petition within ten (10) days from notice of this resolution.

Moran, C. J., Paras, Feria, Pablo, Hilado, Bengzon, Briones, Padilla, and Tuason, JJ., concur.