Special civil action for certiorari and prohibition with preliminary injunction to annul and set aside the Resolutions of the Court of Appeals, dated October 29, 1975 and December 2, 1975, in CA-G.R. No. 57671-R,^[1] and to enjoin the respondents from proceeding with the appeal in said case except to dismiss it, on the ground that said Resolutions were issued without and in excess of its jurisdiction and with grave abuse of discretion, for the appeal therein had not been duly perfected.

The following incidents gave rise to the present petition:

On November 27, 1974, the Court of First Instance of Manila, Branch XIII, through the late Judge Jesus P. Morfe, issued, in Civil Case No. 81878,^[2] an Order Amending Original Decision, reversing a prior decision, dated September 30, 1974, dismissing the complaint of Trans-Philippines, Inc. (herein petitioner), and rendering judgment in its favor and against defendant Luzon Stevedoring Corporation, (herein private respondent) upon a motion for reconsideration filed by petitioner.  The dispositive portion of said Order reads:

"WHEREFORE, plaintiff's motion for reconsideration, dated October 26, 1974, is hereby granted and this Court's decision of September 30, 1974 is hereby amended by deleting all the parts of said decision from the word 'The' of the first paragraph of page five (5) up to the end of said decision; and in lieu thereof this Court substitutes by reference all the contents of this Order, except the first paragraph of page one (1) here­of, and in lieu of the dispositive part of said decision hereby substituted the following:

'WHEREFORE, judgment is hereby rendered ordering the defendant to pay to the plaintiff, a damage which plaintiff's cargo would not have suffered had the defendant not breached its contract, the amount of P209,530.84, plus P20,000.00 by way of damage as and for attorney's fees.  With costs against the defendant.'"

Luzon Stevedoring Corporation received a copy of the aforesaid Order Amending Original Decision, subject of the appeal, on December 4, 1974, and, therefore, it had a period of thirty (30) days from said date, or until January 3, 1975, within which to perfect an appeal.

On December 27, 1974, Luzon Stevedoring Corporation filed with the trial court a notice of appeal, a cash appeal bond and a motion for extension of time to file record on appeal, asking for fifteen (15) days from January 3, 1975, or until January 18, 1975, within which to file the same, on the ground of "pressure of work".

On January 7, 1975, petitioner filed its opposition to the extension and moved to dismiss the appeal and for issuance of a Writ of Execution, contending that:  (1) the motion for extension was a "useless piece of paper", because it was not addressed to adverse party and had not been set for hearing; (2) the reason given does not justify the extension; and (3) the filing of the record on appeal within the thirty-day period from notice of judgment is mandatory under Section 3, Rule 41 of the Revised Rules of Court, and the filing of a motion for extension of time does not ipso facto suspend the period of appeal, citing Bello v. Fernando,^[3] and, therefore, Luzon Stevedoring Corporation not having perfected its appeal within the reglementary period of thirty (30) days, the decision sought to be appealed had already become final and executory.

In compliance with the Order of the court requiring the petitioner to submit proof of service of its motion, petitioner filed its "Compliance and Manifestation" on January 31, 1975, attaching thereto the registry receipt and the return card of said motion and manifesting to the court that "the extended period prayed for would have expired last January 18, 1975 but up to this date, January 21, 1975, no record on appeal appears to have been filed."

This manifestation notwithstanding, the trial court, on February 4, 1975, issued an Order stating that "it appearing that the aforesaid motion toge­ther with the notice of appeal and appeal bond were filed seven (7) days before the decision became final and executory, in the interest of justice and equity the defendant's motion is hereby granted.  Defendant Luzon Stevedoring Corporation is hereby directed to file its record on appeal within five (5) days from the date hereof."^[4]

On February 8, 1975, Luzon Stevedoring Corporation filed a sixty-five-page record on appeal, dated February 7, 1975, setting the same for hearing on February 14, 1975.

On February 13, 1975, petitioner filed a motion for reconsideration of said Order of February 4, 1975, contending that Luzon Stevedoring Corporation's appeal had not been duly perfected within the period prescribed by law and the trial court had no longer any power to extend the time for the perfection of the appeal.  Simultaneously, petitioner also filed an urgent ex parte motion to defer the hearing on the record on appeal until the resolution of its motion for reconsideration.

On February 14, 1975, the trial court reset the hearing of the record on appeal to February 19, 1975, on which date said court also gave Luzon Stevedoring Corporation until the next day to file its written opposition to petitioner's motion for reconsideration.

On February 20, 1975, Luzon Stevedoring Corporation filed its opposition, stating that its motion for extension of time to file the record on appeal was not acted upon due to the retirement of the incumbent judge, and said motion for extension was acted upon only on February 4, 1975 by Judge Rafael S. Sison, to whom the case was reassigned, and that the appeal is not dilatory nor frivolous.  On March 6, 1975, petitioner filed its reply to said opposition.

On May 26, 1975, the trial court issued an Order dismissing the appeal of Luzon Stevedoring Corporation, thus:

"Considering that the Record on Appeal was filed only on February 8, 1975, or a good twenty-one (21) days after and further, considering that from January 18, 1975, defendant had not even filed any motion for extension of time to file the Record on Appeal, the appeal has not been perfected.  Under Section 3, Rule 41 of the Rules of Court, to perfect an appeal, an appellant must file and serve a notice of appeal, a Record on Appeal, and an appeal bond within thirty (30) days from notice of judgment otherwise, the appeal is not perfected.  And even a motion for extension of time to perfect an appeal does not suspend the running of the period sought to be extended.

"PREMISES CONSIDERED, it is hereby ordered that the appeal filed by the defendant be DISMISSED."

Barely two (2) days after, or on May 28, 1975, the trial court motu propio reconsidered its Order of May 26, 1975 on the ground of "oversight" and approved Luzon Stevedoring Corporation's record on appeal, thus:

"Upon going over the record of this case, this Court thru oversight issued an order dated May 26, 1975 dismissing defendant's record on appeal, which order contravenes an earlier order dated February 4, 1975 directing the said defendant to file its record on appeal within five (5) days from date hereof; the Court motu propio and in the exercise of its sound discretion reconsiders its order of May 26, 1975 and hereby approves defendant's record on appeal."

After the case was elevated to the respondent Court of Appeals,^[5] petitioner filed, on September 8, 1975, a motion to dismiss the appeal, on the grounds that:  (a) the appeal has not been perfected on time; (b) the record on appeal does not show on its face that the appeal was perfected on time; and (c) the record on appeal is fatally defective in other respects.^[6]

On October 29, 1975, after Luzon Stevedoring Corporation had filed its comment on petitioner's motion to dismiss, the Court of Appeals, by minute resolution, denied petitioner's motion to dismiss.^[7]

On November 18, 1975, petitioner filed a motion for reconsideration,^[8] reiterating its principal reason in its motion to dismiss, i.e., that the Court of Appeals has no jurisdiction to entertain the appeal because it was made beyond the period provided by law.

On December 2, 1975, the Court of Appeals denied petitioner's motion for reconsideration, stating that "the motion for extension was filed before the expiration of the period of appeal.  Although the motion asked for an extension until January 18, 1975, this motion was not acted upon until February 4, 1975, and the order granted appellant five days from February 4, 1975, to file the record on appeal which was filed on February 9, 1975 (should be February 8, 1975), or within the extended period.  The Court may act upon the motion for extension and grant it even if at the time of the order the original period had already expired."^[9]

Hence, this petition for certiorari and prohibition with preliminary injunction, which raises in issue the authority of the trial court to extend the period for filing the record on appeal within five (5) days from February 4, 1975, or on February 9, 1975, notwithstanding the absence of any motion by appellant, before the expiration of the period prescribed by law, to extend the period to file the record on appeal, beyond January 18, 1975.  As prayed for by petitioner, this Court issued on January 8, 1976, a temporary restraining order against the respondents.

Under the rules, in order to perfect an appeal, the appellant must file with the trial court and serve upon the adverse party a notice of appeal, a record on appeal, and an appeal bond within thirty (30) days from notice of order or judgment, otherwise the appeal is considered not duly perfected.^[10]

In the case at bar, it should be noted that Luzon Stevedoring Corporation received on December 4, 1974 a notice of the Order of November 27, 1974 of the trial court amending original decision, subject of the appeal, so that as appellant it had a period of thirty (30) days from service of the order, or until January 3, 1975, within which to perfect its appeal.  It is true that on December 27, 1974, Luzon Stevedoring Corporation filed with the trial court a notice of appeal, a cash appeal bond and a motion for extension of fifteen (15) days from January 3, 1975, or until January 18, 1975, within which to file its record on appeal, but Luzon Stevedoring Corporation failed to file any record on appeal within the requested extension period.  It is also undisputed that private respondent did not file any motion for the extension of the period requested, which expired on January 18, 1975.  There is no question that "the court has power and discretion to extend the period for filing the record on appeal in the interest of justice, if it appears that the appellant has not sufficient time to prepare and file it within the period limited by law, either because the remaining period is very short, or the record on appeal voluminous, or because of some other justifiable reason, provided the motion for extension is filed before the expiration of the period fixed by law."^[11] This power of the court to extend the period exists only if the motion to extend is filed prior to the expiration of the period prescribed by law.  Thus, it has always been the consistent ruling of this Court that while the period within which the record on appeal and appeal bond should be perfected and filed may be extended by order of the court, the application for extension should be made prior to the expiration of the original period.^[12] It is evident from the foregoing that the court has authority to extend the period for perfecting the appeal on two (2) conditions:  (1) the motion for extension must be filed prior to the expiration of the period prescribed by law; and (2) such motion should be supported by justifiable reasons.  The first condition is predicated upon the fact that once the period prescribed expires and no record on appeal has yet been filed, the court loses jurisdiction to approve the extension, unless the delay is due to fraud, accident, mistake or excusable negligence.^[13] Indeed, it is the duty of appellant to ascertain the status of his motion, for if no action is taken thereon or is denied after the lapse of the period, the right to appeal is lost.^[14] The second is based on the settled rule that while the trial court may, in its discretion, extend the time for appeal beyond the period fixed by law, it must be satisfactorily shown that there is a justifiable reason for such action, like fraud, accident, mistake or excusable negligence, or similar supervening causality, without the fault on the part of the appellant.^[15] Here, not only has Luzon Stevedoring Corporation failed to file any motion for extension of the period for filing the record on appeal after January 18, 1975, but what is more, there appears to be no justifiable reason to warrant the action of the judge in extending such period after the same had already expired.

It is true that the trial court is vested with discretion to allow or admit an appeal filed out of time.  But this discretion is not unconditional.  There must be a legal justification to warrant such action.  Thus, in Reyes v. Court of Appeals, et al.,^[16] where this Court enjoined the Court of Appeals from taking cognizance of the appeal on the ground that the record on appeal was not filed within the thirty-day period provided by the rules, this Court explained that "interest of justice" cannot be invoked against the rule unless there is lawful justification.

"* * * When we said that 'it was not mandatory but, if at all, purely discretionary in their respondent judge to approve or disapprove it in the interest of justice' we did not mean that a judge is vested with discretion to approve a record on appeal presented out of time without legal justification.  For instance, if in that case Bustamante had filed the record on appeal on January 23, 1942, the respondent judge would have been justified in admitting it although it was filed beyond the thirty-day reglementary period, for the reason that on account of war the office of the clerk of court was closed before said date.  Conversely, in the absence of any justifying circumstance the court has no discretion to approve or admit an appeal filed out of time.  The interest of justice cannot be invoked against the rule unless there is lawful justification.  It is the intervention of such circumstance as the law recognizes as a valid reason for relaxing the rule -- fraud, accident, mistake, excusable negligence that creates the 'interest of justice' in favor of the victim of the circumstance." (At pp. 237-238.)

Certainly, the private respondent cannot invoke the inaction of the court as a justification for having a longer period.^[17] As this Court emphasized in various cases, it was the duty of the appellant to ascertain from the Clerk of Court the status of the motion for extension.  Had it followed this elementary precaution, private respondent could have known the absence of the judge in Branch XIII to act on its motion, in which event it was its duty to present the same motion for the approval of the judge of the Court of First Instance of Branch XIV, the sala assigned, under the internal rules of the Court of First Instance of Manila, to act on motions pertaining to Branch XIII in the absence of the incumbent judge therein.

Private respondent Luzon Stevedoring Corporation, however, argues that it filed this record on appeal within the period granted by the trial court in its Order of February 4, 1975 and it does not have to plead fraud, accident, mistake or excusable negligence to secure approval of its record on appeal.  This argument fails to consider the circumstance that at the time when the trial court issued its Order of February 4, 1975, the period to file the record on appeal had already expired, hence the trial court had no longer any authority to grant the extension, as there was no longer any period to extend.  Compliance with the period provided by law for the perfection of an appeal is not merely mandatory but it is jurisdictional requirement, and failure to perfect an appeal within the reglementary period renders the judgment of the court final.^[18]

In view of the foregoing, the respondent Court of Appeals committed an error amounting to an abuse of discretion in denying the petitioner's motion to dismiss the appeal of private respondent Luzon Stevedoring Corporation.

ACCORDINGLY, the petition for certiorari and prohibition is granted and the respondent Court of Appeals' Resolutions of October 29, 1975 and December 2, 1975 are set aside for being null and void, and the appeal of private respondent Luzon Stevedoring Corporation in CA-G.R. No. 57671-R is hereby dismissed.  The temporary restraining order hereto­fore issued by this Court is hereby made permanent, perpetually prohibiting the respondents from proceeding with the appeal in said case, except to dismiss it.  Costs against private respondent Luzon Stevedoring Corporation.

Concepcion, Jr. and Santos, JJ., concur.
Barredo, J., concurs in a separate opinion.
Aquino, J., dissents.
Fernando, J., (Chairman), concurs in the result.

---

^[1] Entitled "Trans-Philippines Tobacco Co., Inc., Plaintiff-Appellee, versus Luzon Stevedoring Corporation, Defend­ant-Appellant".

^[2] Entitled "Trans-Philippines Tobacco Co., Inc., Plaintiff, versus LuzonStevedoring Corporation, Defendant, for Damages".

^[3] 4 SCRA 135.

^[4] Record on Appeal, p. 87.  Italics supplied.

^[5] Docketed as CA-G.R. No. 57671-R.

^[6] Annex "A", Petition.

^[7] Annex "C", Ibid.

^[8] Annex "D", Ibid.

^[9] Annex "E", Ibid.

^[10] Sees. 3, 5 and 9, Rule 41 of the Revised Rules of Court; Espartero v. Ladaw, 92 Phil. 704; Philippine Resources Development Corporation v. Narvasa, 4 SCRA 414.

^[11] Moya v. Barton, 76 Phil. 831.  Italics supplied.

^[12] Director of Lands v. Maurera, et al., 37 Phil. 410; Layda v. Legaspi, 39 Phil. 83; Alejandro v. Endencia, 64 Phil. 321; Moya v. Barton, supra; Alvero v. De la Rosa, 76 Phil. 428; Caisip v. Cabangon, 109 Phil. 150; Sy It v. Tiangco, 4 SCRA 436; Vivo v. Arca, 13 SCRA 771; Galima v. Court of Appeals, 16 SCRA 140; Nuguid vda. de Haverer v. Martinez, 62 SCRA 162.

^[13] Berkenkotter v. Court of Appeals, 53 SCRA 228.

^[14] Cumplido v. Mendoza, 11 SCRA 477, 481.

^[15] Alvero v. De la Rosa, supra; Moya v. Barton, supra; Lopez v. Lopez, 77 Phil. 133; Peralta v. Solon, 77 Phil. 610; Santiago v. Valenzuela, 78 Phil. 397; Bello v. Fernando, 4 SCRA 135.

^[16] 74 Phil. 235.

^[17] Reyes v. Sta. Maria, 48 SCRA 1, 7.

^[18]Antique Sawmills, Inc. v. Zayco, et al., 17 SCRA 316.

tags