This is an appeal  from an order of  the Court of First Instance  of La  Union, dismissing plaintiff's complaint.

The said complaint alleges that plaintiff had become the owner of a piece of land by purchase at an execution sale, the deed of definitive sale having been issued to 'him  on July  25, 1947;  that  on July 81  of that year the deputy sheriff,  Emilio  cle Guzman, put  him  in possession of  a piece of land which the barrio lieutenant, Aniceto Zandaga, pointed out as the one  described in the deed but which in fact proved to be different; that upon discovering this fact and that the land bought by him and described in the deed was  being  occupied  by Zandaga, plaintiff  demanded possession thereof  but  the demand was  refused,  Zandaga claiming  that he was "the  successor in interest" of the judgment debtor; and that by  Zandaga's willful  and malicious act in concealing the identity of the property covered by the deed  plaintiff was deprived of its possession and enjoyment of its fruits.  The complaint  pray that  defendant Aniceto Zandaga be ordered to show his, title to the land and that should his title prove inferior  to  that of plaintiff, the latter be declared the rightful  owner of the property and defendant Zandaga  ordered to  deliver possession thereof to him, together with his share of the products of the lands, and also, to pay damages, attorney's fee and costs  and furthermore to declare the provincial sheriff subsidiarily liable should his co-defendant  Aniceto Zandaga be  unable  to  pay what might be  adjudged by the court.

Instead  of answering  the  complaint,  both defendants moved for dismissal on the ground that the complaint did not state  a cause of action, and the motion having been granted, plaintiff  appealed  directly to this  Court as  the question involved is  purely  legal.

Briefly  stated,  the case is that of a purchaser  of real property at an execution sale already in receipt of a definitive  deed, who,  having been  prevented  from taking possession of said property by an alleged successor in interest of  the judgment debtor,  comes to court for relief, asking  that  he be  declared  the rightful  owner  of  the property and, consequently,, entitled to its possession and to damages.

It is settled that upon receipt of the definitive  deed in an  execution sale, legal  title  over the  property  sold is perfected   (S3  C.  J.  S. 654).  And this court has  also and that the  land bought by him and described in the deed deemed within the  period  allowed for that purpose, its ownership becomes consolidated.in the purchaser,  and the latter, "as absolute owner * * * is entitled to its possession and to receive the rents and fruits thereof."   (Powell vs.  Philippine National Bank, 54 Phil., 54, 63:)  As  the purchaser in the present case has, according to the allegations of the  complaint- which  are  deemed  hypothetically admitted  by  the  motion to dismiss already received the definitive deed of sale and become the owner of the property bought, he should be entitled to its possession and cannot be  excluded  therefrom  by  one, who,  according  to the same complaint, merely claims to be  a "successor in  interest of the  judgment debtor," unless it is adjudged that this alleged  successor  has a  better right  to the property than  the  purchaser.   Such adjudication,  however, would at this stage of the proceedings  be premature  and without basis.   To  dismiss the  complaint  now, merely  upon motion, is  in effect to declare that the judgment  debtor's alleged successor  has a better right to the property  than the purchaser, a legal  conclusion  which cannot be deduced from the facts alleged.   (See 44 Am. Jur. 77.)

It would appear that the trial  court dismissed the  complaint in the belief that  plaintiff's  remedy  was under , section 32  of Rule 39, which reads:

"Sec. 32. When purchaser  of property may recover  price from judgment creditor.  When he may have judgment  revived. The purchaser of real property sold on execution, or his successor  in interest, who fails to recover possession thereof, or is evicted  there from,  in consequence of irregularities in the  proceedings concerning the sale, or because  the judgment  has been  reversed or  set aside,  or because the property sold was exempt from, execution,  or because a third person has vindicated his  claim to  the  property, may in  a proper action  recover  from the  judgment creditor  the price  paid, with interest, or so much thereof as has  been  delivered to t3ie judgment debtor, or may, on motion after  notice, have the  original judgment  revived  in his name for the  whole  price with interest,  or so much thereof as has  been delivered to  the judgment debtor.  The  judgment  so  revived shall have  the same force and effect as would an original  judgment of the  date of  the revival and no more."

But while this provision of the Rules  gives the  purchaser of real property  sold  on execution who fails to recover possession thereof, or is evicted therefrom, recourse against the judgment creditor or  the judgment  debtor,  it  does , not bar him  from his right  to  recover possession where that right has not yet been denied  by the courts.

It follows that,  at  least as against the defendant Aniceto Zandaga, plaintiff's complaint stated a cause of action.   As to the defendant provincial  sheriff,  there is no sufficient allegation in the complaint-to make him subsidiarily liable.

Wherefore,  the order  of dismissal is  revoked with respect to the defendant Aniceto Zandaga  and the case remanded  to  the court below for further proceedings.  The dismissal. as  to the  provincial sheriff shall  stand unless proper amendment to  the complaint is  made within the time to be fixed by the lower court.

The appellee Aniqeto Zandaga shall pay costs.

Parás, C J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L. and Endencia, JJ., concur.