Petition for certiorari, to annul and set aside an order of the respondent court ordering the herein petitioners to deliver a certain parcel of land to the private respondents to allegedly conform with this Court's decision in Civil Case G.R. No. L-17966, entitled:  "Fermin de la Victoria, et al., petitioners, versus Levy Hermanos, Inc., et al., respondents," and prohibition, to restrain the execution of said order.

On June 5, 1951, the spouses Fermin de la Victoria and Concepcion Nemenzo, Juan Ortega, Marcelino Ortega, and Irenea Ortega, thru her guardian ad litem Juan Ortega filed an action with the Court of First Instance of Negros Occidental against Levy Hermanos, Inc. and the spouses Jovencio and Eulalia Concha for the annulment of the foreclosure of mortgage proceedings in Civil Case No. 8176 of the Court of First Instance of Negros Occidental and to be declared the absolute owners of Lot No. 121-A2-C-2-A of the San Carlos Cadastre.  The plaintiffs further prayed that the defen­dants be sentenced to pay damages.^[1]

After hearing the parties, the court dismissed the complaint; declared the defendant spouses Jovencio and Eulalia Concha the owners of that portion of Lot 121-A formerly belonging to Juan, Anacleto, Marcelino, and Irenea, all surnamed Ortega, covered by TCT No. RT­-1349; and ordered the spouses Fermin de la Victoria and Concepcion Nemenzo to deliver possession of the property or whatever part thereof is actually occupied by them to the spouses Jovencio and Eulalia Concha.  On appeal, the judgment was affirmed in toto.^[2]

Upon a review of the case,^[3] however, this Court found that the spouses Fermin de la Victoria and Concepcion Nemenzo had earlier taken possession of a portion of the land corresponding to the total 2/8 pro indiviso shares of Anacleto and Marcelino Ortega, in good faith, and erected thereon two buildings, one used for residential, and the other for commercial purposes; and that the aforenamed spouses have not been duly impleaded in the foreclosure case so that the said spouses cannot be deprived of the possession of the two buildings without due process; and the judgment was modified "in the sense that Civil Case No. 8176 of the Court of First Instance of Negros Occidental is declared without effect insofar as the right, interest and parti­cipation of spouses Fermin de la Victoria and his wife Concepcion Nemenzo over Lot 121-A of San Carlos Cadastre is concerned, especially the portion belonging to them as well as the improvements they construct­ed thereon."

In due time, the records of the case were remanded to the lower court for execution.  To enforce the judgment, the respondent court issued an order on September 20, 1966 ruling that "the area which should pertain to Fermin de la Victoria is only 2,062.82 square meters," and "(T)his area must be satisfied and delivered to Fermin de la Victoria from the portion of Lot 121 presently occupied by Jovencio Concha and which adjoins the portion presently occupied by Fermin de la Victoria."^[4]

The defendant spouses Jovencio and Eulalia Concha filed a motion for the reconsideration of the aforesaid order stating, among others, that the decision of this Court did not mention a specific portion of Lot 121 which should be adjudicated to the plaintiff spouses Fermin de la Victoria and Concepcion Nemenzo other than that portion wherein the latter had erected their residential and commercial buildings and made improvements thereon; that said decision did not give the plaintiff spouses the right to choose which portion of Lot 121 should pertain to them; and that to take the portion presently occupied by defendant spouses will not satisfy the judgment because the defendants are only occupying a portion with an area of 600 sq. m., more or less.^[5] After conducting an ocular inspection of the pre­mises, the respondent court denied the motion on December 16, 1966.^[6]

Whereupon, the spouses Jovencio and Eulalia Concha filed the present petition, claiming that the respondent court had varied the terms of the executory judgment without or in excess of its jurisdiction, and that there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law other than the present petition.

There is merit in the petition.  The respondent court correctly held, in its order dated September 20, 1966, that the area which should pertain to Fermin de la Victoria and his wife is only 2,062.82 sq. m. because this area corresponds to the total 2/8 pro indiviso shares of Anacleto and Marcelino Ortega in Lot 121-A of the San Carlos Cadastre which were sold to Fermin de la Victoria and his wife and wherein the latter spouses had erected their residential and commercial buildings.  But, the respondent court committed an error when it recognized the rights of said spouses Fermin de la Victoria and Concepcion Nemenzo over other portions of Lot 121-A, thus altering the terms of the executory judgment.

In the modificatory decision, the Court recognized the rights of Fermin de la Victoria and his wife over only that portion acquired by the said spouses from Anacleto and Marcelino Ortega wherein they have erected two buildings which they used for residential and commercial purposes.  The Court said:

"On the strength of the facts related above there is no doubt that when the lot in question was mortgaged by the Ortegas on August 6, 1936 to Levy Hermanos, Inc. to secure the payment of a car which they had purchased from it the right, interest and participation therein belonging to Anacleto and Marcelino had already been conveyed to Fer­min de la Victoria and his wife, and the cor­responding deeds of conveyance annotated on the back of its title as a consequence of which said spouses took possession of the portions conveyed to them and constructed thereon two buildings, one for residence and the other for business.  However, when the foreclosure case was instituted the company only impleaded the Ortegas but failed to include Fermin de la Vic­toria and his wife with the result that after the property was sold to Jovencio Concha and his wife these spouses were declared with the right to take possession of the land and eject therefrom Fermin de la Victoria and his wife.  This is now assigned as error by appellants.

"We find merit in this contention.  While it is true that under Rule 70, Section 3, of our Rules of Court the sale of a mortgaged property shall not affect the rights of persons holding prior incumbrances prior to that of Levy Hermanos, Inc., it should not however be overlooked that said spouses were placed immediately in possession of the land after the conveyance and have erected thereon two buildings one for residence and the other for business at their cost.  Hence, said spouses cannot be deprived of the possession of the two buildings without due process for apparently they acted on the matter in good faith.  In fact, their possession remained undisturbed until the foreclosure case was started by the Levy Hermanos, Inc.  Evidently, the court a quo acted unfairly when it ordered them to deliver to spouses Concha the possession of the property not being parties to the case."^[6]

It thus results that the respondent court had no jurisdiction or exceeded its jurisdiction in ordering the spouses Jovencio and Eulalia Concha to deliver a definite portion of Lot 121-A of the San Carlos Cadastre to the spouses Fermin de la Victoria and Concepcion Nemenzo, over and above that recognized as pertaining to said spouses.

To restate, the spouses Jovencio and Eulalia Concha are the owners of that portion of Lot 121-A formerly belonging to Juan, Anacleto, Marcelino, and Irenea, all surnamed Ortega, covered by TCT No. RT-1349, except that 2/8 pro indiviso portion previously sold by Anacleto and Marcelino Ortega to Fermin de la Victoria and his wife wherein the latter spouses had constructed two buildings.

WHEREFORE, the petition is granted and the orders of respondent court in Civil Case No. 1970, dated September 20, 1966 and Dec­ember 16, 1966, are hereby ANNULLED and SET ASIDE.  The parties are hereby ordered to effect a partition of that parcel of land known as Lot 121-A of the San Carlos Cadastre, with an area of 8,250.50 square meters, covered by TCT No. RT-1349 of the Register of Deeds of Negros Occidental in the names of Juan, Marcelino, Irenea, and Anacleto, all surnamed Ortega, and submit the same to the trial court within thirty (30) days after this decision shall have become final and executory, and should they fail therein, the trial court should effect such partition in accordance with Rule 69 of the Revised Rules of Court.

SO ORDERED.

Barredo, (Chairman), Abad Santos, and De Castro, JJ., concur.
Aquino, J., see attached concurrence.

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^[1] Civil Case No. 1970.

^[2]  CA-G.R. No. 17874-R, Feb. 26, 1962.

^[3] G.R. No. L-19766, August 31, 1965; 14 SCRA 996.

^[4] Rollo, p. 16.

^[5] Id., p. 17.

^[6] Id., p. 20.

^[6] See Decision in G.R. No. L-19766, Aug. 31, 1965; 14 SCRA 996.

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