SECOND DIVISION

[G.R. No. 184045. January 22, 2014.]

SPOUSES NICASIO C. MARQUEZ AND ANITA J. MARQUEZ,

petitioners, vs. SPOUSES CARLITO ALINDOG AND CARMEN
ALINDOG, respondents.

DECISION

PERLAS-BERNABE, J : p

Assailed in this petition for review on certiorari 1(1) are the Decision 2(2)
dated February 29, 2008 and Resolution 3(3) dated August 6, 2008 of the Court of
Appeals (CA) in CA-G.R. SP No. 97744 finding no grave abuse of discretion on
the part of the Regional Trial Court of Tagaytay City, Branch 18 (RTC) in issuing
the Orders dated November 14, 2005 4(4) and January 17, 2007 5(5) in SCA No.
TG-05-2521. Based on these orders, a writ of preliminary injunction was issued
against petitioners-spouses Nicasio C. Marquez and Anita J. Marquez (Sps.
Marquez), enjoining them from taking possession of the property subject of this
case despite the consolidation of their title over the same.

The Facts

Records show that sometime in June 1998, petitioner Anita J. Marquez

(Anita) extended a loan in the amount of P500,000.00 to a certain Benjamin
Gutierrez (Gutierrez). As security therefor, Gutierrez executed a Deed of Real
Estate Mortgage 6(6) dated June 16, 1998 over a parcel of land located in
Tagaytay City with an area of 660 square meters, more or less, covered by
Transfer Certificate of Title (TCT) No. T-13443 7(7) (subject property), registered
under the name of Benjamin A. Gutierrez, married to Liwanag Camerin (Sps.
Gutierrez). The mortgage was duly annotated on the dorsal portion of TCT No.
T-13443, which Sps. Marquez had verified as clean prior to the mortgage. 8(8) IEAaST

Since Gutierrez defaulted in the payment of his loan obligation, Anita

sought the extra-judicial foreclosure of the subject property. At the public auction
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 sale held on January 19, 2000, Anita emerged as the highest bidder for the amount
of P1,171,000.00. 9(9) Upon Gutierrez's failure to redeem the same property
within the prescribed period therefor, title was consolidated under TCT No.
T-41939 10(10) on November 5, 2001 (in the name of Anita J. Marquez, married
to Nicasio C. Marquez) which, however, bore an annotation of adverse claim
11(11) dated March 2, 2000 in the names of respondents-spouses Carlito and
Carmen Alindog (Sps. Alindog). Said annotation was copied from an earlier
annotation on TCT No. T-13443 made only after the subject property's mortgage
to Sps. Marquez.

Subsequently, or on March 21, 2000, Sps. Alindog filed a civil case for
annulment of real estate mortgage and certificate of sale with prayer for damages
against Sps. Marquez and a certain Agripina Gonzales (Gonzales) before the RTC,
docketed as Civil Case No. TG-1966 (annulment case). In their complaint, 12(12)
Sps. Alindog alleged that they purchased 13(13) the subject property from
Gutierrez way back in September 1989, but were unable to secure a certificate of
title in their names because Gonzales — to whom they have entrusted said task —
had deceived them in that they were assured that the said certificate was already
being processed when such was not the case. 14(14) Eventually, they found out
that the property had already been mortgaged to Sps. Marquez, and that when they
tried to contact Gonzales for an explanation, she could no longer be found.
Separately, Sps. Alindog averred that when the mortgage was executed in favor of
Sps. Marquez, Gutierrez was already dead. 15(15) HDAaIc

In their defense, 16(16) Sps. Marquez disputed Sps. Alindog's ownership

over the subject property, arguing that the purported sale in the latter's favor was
never registered and therefore, not binding upon them. Further, they insisted that
their certificate of title, TCT No. T-41939, was already indefeasible, and cannot be
attacked collaterally.

Meanwhile, on March 16, 2005, Anita filed an ex-parte petition for the
issuance of a writ of possession 17(17) (ex-parte petition) before the RTC,
docketed as LRC Case No. TG-05-1068, claiming that the same is ministerial on
the court's part following the consolidation of her and her husband's title over the
subject property. Impleaded in said petition are Sps. Gutierrez, including all
persons claiming rights under them.

The RTC Rulings and Subsequent Proceedings

In an Order 18(18) dated August 1, 2005, the RTC granted Anita's

ex-parte petition and thereby directed the issuance of a writ of possession in her
favor. Consequently, a notice to vacate 19(19) dated September 23, 2005 was
issued by Acting Sheriff Teodorico V. Cosare (Sheriff Cosare) against Sps.
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 Gutierrez and all persons claiming rights under them. Sps. Alindog were served
with a copy of the said notice to vacate on September 27, 2005. 20(20)

Claiming that they would suffer irreparable injury if the implementation of

the writ of possession in favor of Sps. Marquez would be left unrestrained, Sps.
Alindog sought the issuance of a temporary restraining order (TRO) and/or writ of
preliminary injunction with prayer for damages, 21(21) in a separate case docketed
as SCA No. TG-05-2521 22(22) (injunction case) which was raffled to the same
court.

While it appears that the RTC issued a 72-hour TRO on September 29,
2005 in Sps. Alindog's favor, records nonetheless show that said order was not
extended to a full 20-day TRO. 23(23) To this end, the Sheriff's Return 24(24)
dated November 14, 2005 shows that Sheriff Cosare was able to implement the
writ of possession on November 11, 2005, turning over the possession of the
subject property to Sps. Marquez. SCcHIE

After further proceedings on the injunction case, the RTC, through an

Order 25(25) dated November 14, 2005, issued a writ of preliminary injunction
enjoining Sps. Marquez from taking possession of the subject property until after
the controversy has been fully resolved on the merits. The said issuance was based
on the RTC's appreciation of the initial evidence adduced by Sps. Alindog,
concluding that they appear to have a right to be protected. Thus, notwithstanding
the consolidation of Sps. Marquez's title over the subject property, the RTC
granted Sps. Alindog's prayer for injunctive relief, holding that any further
dispossession on their part would cause them irreparable injury. 26(26)

Aggrieved, Sps. Marquez moved for reconsideration, 27(27) essentially

pointing out that, as the confirmed and registered owners of the subject property,
they are entitled to its possession as a matter of right. They argued that pursuant to
Sections 7 28(28) and 8 29(29) of Act No. 3135, 30(30) as amended by Act No. 4118,
31(31) the RTC was legally bound to place them in possession of the subject

property pending resolution of the annulment case. Further, it is their position that
the purpose for the issuance of the injunctive writ — i.e., to restrain the
implementation of the writ of possession — had already been rendered moot and
academic by its actual enforcement in the interim.

For their part, Sps. Alindog filed a Motion for Approval of Cash Bond and
to Regain Possession 32(32) of the subject property.

In an Order 33(33) dated January 17, 2007, the RTC denied the motion of
Sps. Marquez, while granted that of Sps. Alindog. Unperturbed, Sps. Marquez
elevated the case to the CA on certiorari. 34(34) DcCASI

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 The CA Ruling

In a Decision 35(35) dated February 29, 2008, the CA denied Sps.

Marquez's petition as it found no grave abuse of discretion on the RTC's part when
it issued the injunctive writ that enjoined Sps. Marquez from taking possession of
the subject property. It observed that Sps. Alindog had indeed "adduced prima
facie proof of their right to possess the subject property" 36(36) while the
annulment case was pending, adding that the latter's "right to remain in
possession" 37(37) proceeds from the fact of the subject property's earlier sale to
them. Thus, while Sps. Marquez concededly had a right to possess the subject
property on account of the consolidation of the title in their names, the CA
nonetheless found no fault on the part of the RTC for "proceeding with caution"
38(38) in weighing the conflicting claims of the parties and subsequently issuing
the writ of preliminary injunction in Sps. Alindog's favor.

Dissatisfied, Sps. Marquez moved for reconsideration 39(39) which was,

however, denied in a Resolution 40(40) dated August 6, 2008, hence, this petition.

The Issue Before the Court

The essential issue in this case is whether or not the CA erred in finding no
grave abuse of discretion on the part of the RTC when it issued the injunctive writ
which enjoined Sps. Marquez from taking possession of the subject property. TcIAHS

The Court's Ruling

The petition is meritorious.

It is an established rule that the purchaser in an extra-judicial foreclosure

sale is entitled to the possession of the property and can demand that he be placed
in possession of the same either during (with bond) or after the expiration (without
bond) of the redemption period therefor. To this end, the Court, in China Banking
Corp. v. Sps. Lozada 41(41) (China Banking Corp.), citing several cases on the
matter, explained that a writ of possession duly applied for by said purchaser
should issue as a matter of course, and thus, merely constitutes a ministerial
duty on the part of the court, viz.: 42(42)

The procedure for extrajudicial foreclosure of real estate mortgage is

governed by Act No. 3135, as amended. The purchaser at the public
auction sale of an extrajudicially foreclosed real property may seek
possession thereof in accordance with Section 7 of Act No. 3135, as
amended, which provides: CDaSAE

SEC. 7. In any sale made under the provisions of this

Act, the purchaser may petition the Court of First Instance of the
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 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 or 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 court
shall, upon the filing of such petition, collect the fees specified in
paragraph eleven of section one hundred and fourteen of Act
Numbered Four hundred and ninety six as amended by 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 Court expounded on the application of the foregoing provision

in De Gracia v. San Jose, thus: HTcADC

As may be seen, the law expressly authorizes the purchaser to

petition 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; and 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. Under the
legal provisions above copied, the order for a writ of possession
issues as a matter of course upon the filing of the proper motion
and the approval of the corresponding bond. No discretion is left
to the court. And any question regarding the regularity and validity
of the sale (and the consequent cancellation of the writ) is left to be
determined in a subsequent proceeding as outlined in section 8. Such
question is not to be raised as a justification for opposing the
issuance of the writ of possession, since, under the Act, the
proceeding for this is ex parte.

Strictly, Section 7 of Act No. 3135, as amended, refers to a situation

wherein the purchaser seeks possession of the foreclosed property during the
12-month period for redemption. Upon the purchaser's filing of the ex parte
petition and posting of the appropriate bond, the RTC shall, as a matter of
course, order the issuance of the writ of possession in the purchaser's favor.

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 In IFC Service Leasing and Acceptance Corporation v. Nera, the
Court reasoned that if under Section 7 of Act No. 3135, as amended, the
RTC has the power during the period of redemption to issue a writ of
possession on the ex parte application of the purchaser, there is no reason
why it should not also have the same power after the expiration of the
redemption period, especially where a new title has already been issued
in the name of the purchaser. Hence, the procedure under Section 7 of Act
No. 3135, as amended, may be availed of by a purchaser seeking possession
of the foreclosed property he bought at the public auction sale after the
redemption period has expired without redemption having been made.
CITDES

xxx xxx xxx

It is thus settled that the buyer in a foreclosure sale becomes the

absolute owner of the property purchased if it is not redeemed during
the period of one year after the registration of the sale. As such, he is
entitled to the possession of the said property and can demand it at any
time following the consolidation of ownership in his name and the
issuance to him of a new transfer certificate of title. The buyer can in fact
demand possession of the land even during the redemption period except
that he has to post a bond in accordance with Section 7 of Act No. 3135, as
amended. No such bond is required after the redemption period if the
property is not redeemed. Possession of the land then becomes an absolute
right of the purchaser as confirmed owner. Upon proper application and
proof of title, the issuance of the writ of possession becomes a
ministerial duty of the court. (Emphases and underscoring supplied;
citations and emphases in the original omitted)

In the case of Spouses Espiridion v. CA, 43(43) the Court expounded on the
ministerial nature of the foregoing issuance as follows: 44(44)

The issuance of a writ of possession to a purchaser in a public auction is a

ministerial act. After the consolidation of title in the buyer's name for
failure of the mortgagor to redeem the property, the writ of possession
becomes a matter of right. Its issuance to a purchaser in an
extrajudicial foreclosure sale is merely a ministerial function. The trial
court has no discretion on this matter. Hence, any talk of discretion in
connection with such issuance is misplaced.

A clear line demarcates a discretionary act from a ministerial one.

Thus: HIEAcC

The distinction between a ministerial and discretionary act

is well delineated. A purely ministerial act or duty is one
which an officer or tribunal performs in a given state of
facts, in a prescribed manner, in obedience to the mandate
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 of a legal authority, without regard to or the exercise of
his own judgment upon the propriety or impropriety of
the act done. If the law imposes a duty upon a public
officer and gives him the right to decide how or when the
duty shall be performed, such duty is discretionary and not
ministerial. The duty is ministerial only when the discharge
of the same requires neither the exercise of official
discretion or judgment.

Clearly, the use of discretion and the performance of a ministerial act

are mutually exclusive. (Emphases and underscoring supplied; citations
omitted)

The ministerial issuance of a writ of possession in favor of the purchaser in

an extra-judicial foreclosure sale, however, admits of an exception. Section 33,
45(45) Rule 39 of the Rules of Court (Rules) pertinently provides that the
possession of the mortgaged property may be awarded to a purchaser in an
extra-judicial foreclosure unless a third party is actually holding the property
by adverse title or right. In the recent case of Rural Bank of Sta. Barbara (Iloilo),
Inc. v. Centeno, 46(46) citing the case of China Banking Corp., the Court illumined
that "the phrase 'a third party who is actually holding the property adversely to the
judgment obligor' contemplates a situation in which a third party holds the
property by adverse title or right, such as that of a co-owner, tenant or
usufructuary. The co-owner, agricultural tenant, and usufructuary possess the
property in their own right, and they are not merely the successor or transferee
of the right of possession of another co-owner or the owner of the property.
Notably, the property should not only be possessed by a third party, but also
held by the third party adversely to the judgment obligor." 47(47) In other
words, as mentioned in Villanueva v. Cherdan Lending Investors Corporation,
48(48) the third person must therefore claim a right superior to that of the original

mortgagor. HAaDTI

In this case, it is clear that the issuance of a writ of possession in favor of

Sps. Marquez, who had already consolidated their title over the extra-judicially
foreclosed property, is merely ministerial in nature. The general rule as herein
stated — and not the exception found under Section 33, Rule 39 of the Rules —
should apply since Sps. Alindog hinged their claim over the subject property on
their purported purchase of the same from its previous owner, i.e., Sps. Gutierrez
(with Gutierrez being the original mortgagor). Accordingly, it cannot be seriously
doubted that Sps. Alindog are only the latter's (Sps. Gutierrez)
successors-in-interest who do not have a right superior to them.

That said, the RTC therefore gravely abused its discretion when it issued
the injunctive writ which enjoined Sps. Marquez from taking possession of the
subject property. To be sure, grave abuse of discretion arises when a lower court
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 or tribunal patently violates the Constitution, the law or existing jurisprudence.
49(49) Here, while the RTC had initially issued a writ of possession in favor of
Sps. Marquez, it defied existing jurisprudence when it effectively rescinded the
said writ by subsequently granting Sps. Alindog's prayer for injunctive relief. The
RTC's finding anent the initial evidence adduced by Sps. Alindog constitutes
improper basis to justify the issuance of the writ of preliminary injunction in their
favor since, in the first place, it had no authority to exercise any discretion in this
respect. Jurisprudence is clear on the matter: without the exception under Section
33, Rule 39 of the Rules availing, the issuance of a writ of possession in favor of
the purchaser of an extra-judicially foreclosed property — such as Sps. Marquez in
this case — should come as a matter of course, and, in such regard, constitutes
only a ministerial duty on the part of the court. Besides, it was improper for the
RTC to have issued a writ of preliminary injunction since the act sought to be
enjoined, i.e., the implementation of the writ of possession, had already been
accomplished in the interim and thus, rendered the matter moot. Case law instructs
that injunction would not lie where the acts sought to be enjoined had already
become fait accompli (meaning, an accomplished or consummated act). 50(50)
Hence, since the consummation of the act sought to be restrained had rendered
Sps. Alindog's injunction petition moot, the issuance of the said injunctive writ
was altogether improper. EAIcCS

All told, by acting averse to well-settled jurisprudential rules and resultantly

depriving Sps. Marquez of their right of possession over the subject property, the
Court therefore concludes that the RTC gravely abused its discretion in this case.
In effect, the CA's contrary ruling thereto is hereby reversed and set aside, which
consequentially leads to the nullification of the writ of preliminary injunction
issued by the RTC in favor of Sps. Alindog, and the reinstatement of the writ of
possession issued by the same court in favor of Sps. Marquez. It must, however, be
noted that these pronouncements are without prejudice to any separate action
which Sps. Alindog may file in order to recover ownership of the subject property.

WHEREFORE, the petition is GRANTED. The Decision dated February

29, 2008 and Resolution dated August 6, 2008 of the Court of Appeals in CA-G.R.
SP No. 97744, as well as the Orders dated November 14, 2005 and January 17,
2007 of the Regional Trial Court of Tagaytay City, Branch 18 in SCA No.
TG-05-2521 are hereby REVERSED and SET ASIDE. Accordingly, the writ of
preliminary injunction in SCA No. TG-05-2521 is NULLIFIED, while the Writ of
Possession in LRC Case No. TG-05-1068 is REINSTATED.

SO ORDERED.

Carpio, Brion, Del Castillo and Perez, JJ., concur.

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