[ GR No.
213972, Feb 05, 2018 ] Heirs of Nivera are at fault for failing to implead Felicitas as a party defendant in the action for recovery of
FELICITAS L. SALAZAR v. REMEDIOS FELIAS +
DECISION
REYES, JR., J:
The movant's claim that his/her property is exempt from execution for being the family home is not a magic
wand that will freeze the court's hand and forestall the execution of a final and executory ruling. It is imperative
that the claim for exemption must be set up and proven.
This treats of the petition for review on certiorari [1] under Rule 45 of the Revised Rules of Court seeking the
reversal of the Decision[2]dated December 62013, and Resolution[3] dated August 7, 2014, rendered by the
Court of Appeals (CA) in CA-G.R. CV No. 97309, which affirmed the execution of the final and executory
judgment issued by the Regional Trial Court, Branch 55, Alaminos, Pangasinan (RTC Branch 55).
The Antecedent Facts
On February 28, 1990, private respondent Remedios Felias, representing the heirs of Catalino Nivera (Heirs of
Nivera) filed a Complaint for Recovery of Ownership, Possession and Damages against the Spouses Romualdo
Lastimosa (Romualdo) and Felisa Lastimosa (Fe1isa). The former sought to recover from the latter four parcels
of land located in Baruan, Agno, Pangasinan (subject property).
On March 3, 1997, during the trial of the case, Romualdo died.
Consequently, on July 6, 1998, a Motion for Substitution[4] was filed by the decedent's wife, Felisa, and their
children Flordeliza Sagun, Reynaldo Lastimosa, Recto Lastimosa (Recto), Rizalina Ramirez (Rizalina), Lily
Lastimosa, and Avelino Lastimosa (Heirs ofLastimosa).
On March 16, 2004, the RTC Branch 55 rendered a Decision, [5] declaring the Heirs of Nivera as the absolute
owners of the parcels of land in question, and thereby ordering the Heirs of Lastimosa to vacate the lands and
to surrender possession thereof. The dispositive portion of the decision of the RTC Branch 55, reads:
WHEREFORE, this Honorable Court renders judgment:
a. Declaring the [Heirs of Nivera] absolute owners of the parcels of land in question as described in the
Amended Complaint, and ordering the [Heirs of Lastimosa] to surrender possession thereof and vacate the
same;
b. Ordering the [Heirs of Lastimosa], jointly and severally, to pay the [Heirs of Nivera] actual damages in the
amount of Php 270,000.00 for 1975 to 1995, and Php 10,000.00 annually from 1996 and through all the
subsequent years until actual possession shall have been restored to the [Heirs of Nivera]; attorney's fees and
litigation expenses in the amount of Php 21,000.00; and costs.
SO ORDERED.[6]
The Heirs of Lastimosa did not file an appeal against the trial court's ruling.
Meanwhile, Felicitas Salazar (Felicitas), daughter of Romualdo, along with Recto and Rizalina filed a Petition for
Annulment of Judgment dated June 22, 2006 with the CA. Felicitas sought the nullification of the RTC Branch
55's Decision dated March 16, 2004, and the corresponding Writs of Execution and Demolition issued pursuant
thereto.[7] In her Petition for Annulment of Judgment, Felicitas claimed that she was deprived of due process
when she was not impleaded in the case for Recovery of Ownership, before the RTC Branch 55. [8]
On June 5, 2008, the Former Tenth Division of the CA rendered a Decision, [9] in CA-G.R. SP No. 95592,
dismissing the Petition for Annulment of Judgment. The CA refused to give credence to the contention that the
ownership. Rather, the failure to include Felicitas in the proceedings was due to the fault of the Heirs of
Lastimosa, who neglected to include her (Felicitas) in their Motion to Substitute. The CA further ratiocinated that
since the RTC acquired jurisdiction over the person of the original defendants Romualdo and Felisa, the
outcome of the case is binding on all their heirs or any such persons claiming rights under them. [10]
On June 3, 2009, this Court affirmed the CA decision in the Petition for Annulment of Judgment. [11] The Court's
ruling became final, as per Entry of Judgment, on October 5, 2009.
Meanwhile, the Heirs of Lastimosa filed with the RTC Branch 55 an Urgent Motion to Order the Sheriff to Desist
from Making Demolition dated April 24, 2010. The Motion to Desist was premised on the fact that the Sheriff
cannot execute the lower court's decision considering that Felicitas had an aliquot share over the property,
which had not yet been partitioned.[12]
At about the same time, the Heirs of Nivera filed a Motion for Execution and Demolition dated May 28, 2010.
The Motion for Execution was anchored on the fact that the Decision dated March 16, 2004, in the case for
recovery of ownership, possession and damages had long attained finality. [13]
On July 9, 2010, the RTC Branch 55 issued an Order granting the Motion for Execution and Demolition, and
denying the Motion to Desist.[14] The dispositive portion of the order reads:
After going over the allegations in both motions, the Court resolves to deny the motion, to order the Sheriff to
desist from making demolition filed by the defendants through counsel, it appearing that the grounds raised in
the said motion are already mooted by the subsequent filing of the motion for execution and demolition filed by
plaintiff through counsel.
The motion for execution and demolition is hereby granted.
Accordingly, let [a] Writ of Execution and Demolition issue to satisfy judgement rendered in this case.
SO ORDERED.[15]
Dissatisfied with the ruling, the Heirs of Lastimosa[16] filed an appeal before the CA, questioning the Writ of
Execution and Demolition issued by the lower court.
On December 6, 2013, the Fifteenth Division of the CA rendered the assailed Decision [17] dismissing the appeal
on the following grounds, to wit: (i) the Heirs of Lastimosa availed of the wrong remedy by filing an appeal,
instead of a petition for certiorari under Rule 65; (ii) the matter pertaining to the non-inclusion of Felicitas is
already barred by res judicata, as it has been settled with finality in CA-G.R. SP No. 95592, and affirmed by the
Supreme Court in G.R. No. 185056; and (iii) the execution of the decision rendered by the RTC Branch 55 is
proper considering that case has long attained finality. The dispositive portion of the assailed CA decision
reads:
ACCORDINGLY, the appeal is DENIED. The assailed Order dated April 6, 2011 is AFFIRMED. [18]
Felicitas filed a Motion for Reconsideration against the same Decision, which was denied by the CA in its
Resolution[19] dated August 7, 2014.
Undeterred, Felicitas filed the instant petition for review on certiorari[20] under Rule 45 of the Revised Rules of
Court seeking the reversal of the assailed CA decision and resolution.
The Issue
The main issue for this Court's resolution rests on whether the CA erred in ordering the execution of the
Decision dated March 16, 2004.
In seeking the reversal of the assailed decision, Felicitas claims that the Writ of Execution and Demolition
issued by the RTC Branch 55 was executed against the wrong party. [21] She points out that she was not
impleaded in the case for recovery of ownership and possession, and thus the decision cannot bind
her.[22] Felicitas argues that she was deprived of her property as an heir without due process, as she was left out
of the proceedings, "completely unable to protect her rights."[23] In addition, Felicitas contends that the execution
cannot continue as the Writ of Execution is being enforced against property that is exempt from execution, as
what is sought to be demolished is her family home. In this regard, Article 155 of the Family Code ordains that
the family home shall be exempt from execution.[24]
On the other hand, the Heirs of Nivera counter that the petition for review on certiorari is nothing but a dilatory
tactic employed by Felicitas to overthrow and delay the execution of the judgment rendered in as early as March
16, 2004.[25] The Heirs of Nivera maintain that Felicitas' claim that she was deprived of her property as an heir
without due process of law has already been settled with finality in the Petition for Annulment of Judgement,
which was dismissed by the CA, and this Court. [26] Likewise, anent the claim that the subject property is exempt
from execution, the Heirs of Nivera aver that Felicitas failed to present an iota of evidence to prove her claim.
On the contrary, Felicitas herself admitted in her pleadings that she does not reside in the subject property in
Alaminos, but actually lives in Muñoz, Nueva Ecija. [27] Moreover, the subject property belonged to the Heirs of
Nivera in as early as the 1950s, thereby negating Felicitas' claim that it is her family home. [28]
Ruling of the Court
The petition is bereft of merit.
Nothing is more settled than the rule that a judgment that is final and executory is immutable and unalterable. It
may no longer be modified in any respect, except when the judgment is void, or to correct clerical errors or to
make nunc pro tunc entries. In the same vein, the decision that has attained finality becomes the law of the
case, regardless of any claim that it is erroneous. Any amendment or alteration which substantially affects a
final and executory judgment is null and void for lack of jurisdiction, including the entire proceedings held for that
purpose.[29] Accordingly, the court cannot refuse to issue a writ of execution upon a final and executory
judgment, or quash it, or stay its implementation. [30]
Concomitantly, neither may the parties object to the execution by raising new issues of fact or law. The only
exceptions thereto are when: "(i) the writ of execution varies the judgment; (ii) there has been a change in the
situation of the parties making execution inequitable or unjust; (iii) execution is sought to be enforced against
property exempt from execution; (iv) it appears that the controversy has been submitted to the judgment of the
court; (v) the terms of the judgment are not clear enough and there remains room for interpretation thereof; or
(vi) it appears that the writ of execution has been improvidently issued, or that it is defective in substance, or
issued against the wrong party, or that the judgment debt has been paid or otherwise satisfied, or the writ was
issued without authority."[31]
In the case at bar, there is no dispute that in as early as March 16, 2004, the RTC Branch 55 of Alaminos,
Pangasinan rendered a Decision in the case for Recovery of Ownership, Possession and Damages, ordering
the Heirs of Lastimosa to vacate the subject properties and surrender them to the Heirs of Nivera. There is no
dispute that this ruling of the RTC had become final and executory. Pursuant thereto, the lower court issued a
Writ of Execution and Demolition.
This notwithstanding, Felicitas seeks to prevent the execution of the same order, arguing that the writ was
issued against the wrong party; and that the property sought to be executed is exempt from execution.
The Court is not persuaded.
It must be noted at the outset that the matter of whether Felicitas was deprived of due process of law for not
having been impleaded in the case for recovery of ownership and possession has long been settled with finality.
In the decision of the CA in the case for Petition for Annulment of Judgment (CA-G.R. SP No. 95592),[32] the
Former Tenth Division of the CA squarely and judiciously passed upon the issue of whether the. judgment of the
lower court in the action for recovery of ownership and possession was void for failure to implead Felicitas. The
CA held that:
Finally, the intimation of the petitioners that private respondent is at fault for failing to implead [Felicitas] as party
defendant in this case is patently without basis. It must be recalled that the lower court acquired jurisdiction over
the person of the original defendants Romualdo and Feliza Lastimosa. Hence, the outcome of this case is
binding on all the heirs or persons claiming rights under the said defendants. When [Romualdo] died on March
3, 1997, the defendants filed an Urgent Motion to Substitute Other Heirs of the said defendant listing the names
of the heirs to be substituted. It is therefore crystal clear that if [Felicitas] was not impleaded in this case as party
defendant being the daughter of [Romualdo], that omission could not be attributed to the private respondent but
the defendants themselves.[33] (Underscoring in the original)
This ruling of the CA was affirmed by this Court in the Resolution dated June 3, 2009, and attained finality as
per Entry of Judgment. Markedly, it is crystal clear that the issues pertaining to Felicitas' non-inclusion in the
proceedings, and the consequent validity of the lower court's judgment have long attained finality. It bears
reiterating that a judgment that is final and executory cannot be altered, even by the highest court of the land.
This final judgment has become the law of the case, which is now immutable.
Additionally, as an heir of the original defendants in the action for recovery of ownership, Felicitas is bound by
the decision rendered against her predecessors-in-interest. Thus, there is nothing that exempts her from the
enforcement of the Writ ofExecution.
In another attempt to thwart the execution of the RTC's final and executory judgment, Felicitas claims that the
execution cannot proceed, as the subject property is her family home and is therefore exempt from execution.
Indeed, the family home is a real right which is gratuitous, inalienable and free from attachment, constituted
over the dwelling place and the land on which it is situated. It confers upon a particular family the right to enjoy
such properties.[34] It cannot be seized by creditors except in certain special cases.[35]
However, the claim that the property is exempt from execution for being the movant's family home is not a
magic wand that will freeze the court's hand and forestall the execution of a final and executory ruling. It must
be noted that it is not sufficient for the claimant to merely allege that such property is a family home. Whether
the claim is premised under the Old Civil Code or the Family Code, the claim for exemption must be set up and
proved.[36]
In fact, in Ramos, et al. v. Pangilinan, et al.,[37] the Court, citing Spouses Kelley, Jr. v. Planters Products, Inc., et
al.,[38] laid down the rules relative to the levy on execution of the family home, viz.:
No doubt, a family home is generally exempt from execution provided it was duly constituted as such. There
must be proof that the alleged family home was constituted jointly by the husband and wife or by an unmarried
head of a family. It must be the house where they and their family actually reside and the lot on which it is
situated. The family home must be part of the properties of the absolute community or the conjugal partnership,
or of the exclusive properties of either spouse with the latter's consent, or on the property of the unmarried head
of the family. The actual value of the family home shall not exceed, at the time of its constitution, the amount of
P300,000 in urban areas and P200,000 in rural areas. [39]
In addition, residence in the family home must be actual. The law explicitly mandates that the occupancy of the
family home, either by the owner thereof, or by any of its beneficiaries must be actual. This occupancy must be
real, or actually existing, as opposed to something merely possible, or that which is merely presumptive or
constructive.[40]
Guided by the foregoing jurisprudential tenets, it becomes all too apparent that Felicitas cannot conveniently
claim that the subject property is her family home, sans sufficient evidence proving her allegation. It bears
emphasis that it is imperative that her claim must be backed with evidence showing that the home was indeed
(i) duly constituted as a family home, (ii) constituted jointly by the husband and wife or by an unmarried head of
a family, (iii) resided in by the family (or any of the family home's beneficiaries), (iv) forms part of the properties
of the absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the
latter's consent, or property of the unmarried head of the family, and (v) has an actual value of Php 300,000.00
in urban areas, and Php 200,000.00 in rural areas.
A perusal of the petition, however, shows that aside from her bare allegation, Felicitas adduced no proof to
substantiate her claim that the property sought to be executed is indeed her family home.

Interestingly, Felicitas admitted in her Motion for Reconsideration dated December 23, 2013, and her Petition
for Annulment of Judgment dated June 22, 2006, that she is, and has always been a resident of Muñoz, Nueva
Ecija.[41] Similarly, the address indicated in Felicitas' petition for review on certiorari is Muñoz, Nueva Ecija.[42]

Equally important, the Court takes judicial notice of the final ruling of the RTC Branch 55 in the case for
recovery of ownership, that the subject property has belonged to the Heirs of Nivera since the 1950s. [43] This
automatically negates Felicitas' claim that the property is her family home.

Undoubtedly, Felicitas' argument that the property subject of the writ of execution is a family home, is an
unsubstantiated allegation that cannot defeat the binding nature of a final and executory judgment. Thus, the
Writ of Execution and Demolition issued by the RTC Branch 55 must perforce be given effect.

In fine, an effective and efficient administration of justice requires that once a judgment has become final, the
winning party should not be deprived of the fruits of the verdict. The case at bar reveals the attempt of the losing
party to thwart the execution of a final and executory judgment, rendered by. the court thirteen (13) long years
ago. The Court cannot sanction such vain and obstinate attempts to forestall the execution of a final ruling. It is
high time that the case be settled with finality and the ruling of the RTC Branch 55 be given full force and effect.

WHEREFORE, premises considered, the instant petition is DENIED for lack of merit. Accordingly, the
Decision dated December 6, 2013 and Resolution dated August 7, 2014, rendered by the Court of Appeals in
CA-G.R. CV No. 97309 are AFFIRMED in toto.

SO ORDERED.
G.R. No. 185920 July 20, 2010
JUANITA TRINIDAD RAMOS, ALMA RAMOS WORAK, MANUEL T. RAMOS, JOSEFINA R. ROTHMAN,
SONIA R. POST, ELVIRA P. MUNAR, and OFELIA R. LIM, Petitioners,
vs.
DANILO PANGILINAN, RODOLFO SUMANG, LUCRECIO BAUTISTA and ROLANDO
ANTENOR, Respondents.
DECISION
CARPIO MORALES, J.:
Respondents filed in 2003 a complaint1 for illegal dismissal against E.M. Ramos Electric, Inc., a company
owned by Ernesto M. Ramos (Ramos), the patriarch of herein petitioners. By Decision 2 of April 15, 2005, the
Labor Arbiter ruled in favor of respondents and ordered Ramos and the company to pay the aggregate amount
of ₱1,661,490.30 representing their backwages, separation pay, 13th month pay & service incentive leave pay.
The Decision having become final and executory and no settlement having been forged by the parties, the
Labor Arbiter issued on September 8, 2005 a writ of execution 3 which the Deputy Sheriff of the National Labor
Relations Commission (NLRC) implemented by levying a property in Ramos’ name covered by TCT No. 38978,
situated in Pandacan, Manila (Pandacan property).
Alleging that the Pandacan property was the family home, hence, exempt from execution to satisfy the judgment
award, Ramos and the company moved to quash the writ of execution. 4 Respondents, however, averred that
the Pandacan property is not the Ramos family home, as it has another in Antipolo, and the Pandacan property
in fact served as the company’s business address as borne by the company’s letterhead. Respondents added
that, assuming that the Pandacan property was indeed the family home, only the value equivalent to ₱300,000
was exempt from execution.
By Order5 of August 2, 2006, the Labor Arbiter denied the motion to quash, hence, Ramos and the company
appealed to the NLRC which affirmed the Labor Arbiter’s Order.
Ramos and the company appealed to the Court of Appeals during the pendency of which Ramos died and was
substituted by herein petitioners. Petitioners also filed before the NLRC, as third-party claimants, a
Manifestation questioning the Notice to Vacate issued by the Sheriff, alleging that assuming that the Pandacan
property may be levied upon, the family home straddled two (2) lots, including the lot covered by TCT No.
38978, hence, they cannot be asked to vacate the house. The Labor Arbiter was later to deny, by Decision of
May 7, 2009, the third-party claim, holding
that Ramos’ death and petitioners’ substitution as his compulsory heirs would not nullify the sale at auction of
the Pandacan property. And the NLRC6 would later affirm the Labor Arbiter’s ruling, noting that petitioners failed
to exercise their right to redeem the Pandacan property within the one 1 year period or until January 16, 2009.
The NLRC brushed aside petitioners’ contention that they should have been given a fresh period of 1 year from
the time of Ramos’ death on July 29, 2008 or until July 30, 2009 to redeem the property, holding that to do so
would give petitioners, as mere heirs, a better right than the Ramos’.
As to petitioners’ claim that the property was covered by the regime of conjugal partnership of gains and as
such only Ramos’ share can be levied upon, the NLRC ruled that petitioners failed to substantiate such claim
and that the phrase in the TCT indicating the registered owner as "Ernesto Ramos, married to Juanita Trinidad,
Filipinos," did not mean that both owned the property, the phrase having merely described Ramos’ civil status.
Before the appellate court, petitioners alleged that the NLRC erred in ruling that the market value of the property
was ₱2,177,000 as assessed by the City Assessor of Manila and appearing in the documents submitted before
the Labor Arbiter, claiming that at the time the Pandacan property was constituted as the family home in 1944,
its value was way below ₱300,000; and that Art. 153 of the Family Code was applicable, hence, they no longer
had to resort to judicial or extrajudicial constitution.
In the assailed Decision7 of September 24, 2008, the appellate court, in denying petitioners’ appeal, held that
the Pandacan property was not exempted from execution, for while "Article 1538 of the Family Code provides
that the family home is deemed constituted on a house and lot from the time it is occupied as a family
residence, [it] did not mean that the article has a retroactive effect such that all existing family residences are
deemed to have been constituted as family homes at the time of their occupation prior to the effectivity of the
Family Code."
The appellate court went on to hold that what was applicable law were Articles 224 to 251 of the Civil Code,
hence, there was still a need to either judicially or extrajudicially constitute the Pandacan property as petitioners’
family home before it can be exempted; and as petitioners failed to comply therewith, there was no error in
denying the motion to quash the writ of execution.
The only question raised in the present petition for review on certiorari is the propriety of the Court of Appeals
Decision holding that the levy upon the Pandacan property was valid.
The petition is devoid of merit.
Indeed, the general rule is that the family home is a real right which is gratuitous, inalienable and free from
attachment, constituted over the dwelling place and the land on which it is situated, which confers upon a
particular family the right to enjoy such properties, which must remain with the person constituting it and his
heirs. It cannot be seized by creditors except in certain special cases. 9
Kelley, Jr. v. Planters Products, Inc.10 lays down the rules relative to the levy on execution over the family home,
viz:
No doubt, a family home is generally exempt from execution provided it was duly constituted as such. There
must be proof that the alleged family home was constituted jointly by the husband and wife or by an unmarried
head of a family. It must be the house where they and their family actually reside and the lot on which it is
situated. The family home must be part of the properties of the absolute community or the conjugal partnership,
or of the exclusive properties of either spouse with the latter’s consent, or on the property of the unmarried head
of the family. The actual value of the family home shall not exceed, at the time of its constitution, the amount of
₱300,000 in urban areas and ₱200,000 in rural areas.
Under the Family Code, there is no need to constitute the family home judicially or extrajudicially. All family
homes constructed after the effectivity of the Family Code (August 3, 1988) are constituted as such by operation
of law. All existing family residences as of August 3, 1988 are considered family homes and are prospectively
entitled to the benefits accorded to a family home under the Family Code.
The exemption is effective from the time of the constitution of the family home as such and lasts as long as any
of its beneficiaries actually resides therein. Moreover, the debts for which the family home is made answerable
must have been incurred after August 3, 1988. Otherwise (that is, if it was incurred prior to August 3, 1988), the
alleged family home must be shown to have been constituted either judicially or extrajudicially pursuant to the
Civil Code. (emphasis supplied)
For the family home to be exempt from execution, distinction must be made as to what law applies based on
when it was constituted and what requirements must be complied with by the judgment debtor or his successors
claiming such privilege. Hence, two sets of rules are applicable.
If the family home was constructed before the effectivity of the Family Code or before August 3, 1988, then it
must have been constituted either judicially or extra-judicially as provided under Articles 225, 229-231 and 233
of the Civil Code.11 Judicial constitution of the family home requires the filing of a verified petition before the
courts and the registration of the court’s order with the Registry of Deeds of the area where the property is
located. Meanwhile, extrajudicial constitution is governed by Articles 240 to 242 12 of the Civil Code and involves
the execution of a public instrument which must also be registered with the Registry of Property. Failure to
comply with either one of these two modes of constitution will bar a judgment debtor from availing of the
privilege.
On the other hand, for family homes constructed after the effectivity of the Family Code on August 3, 1988,
there is no need to constitute extrajudicially or judicially, and the exemption is effective from the time it was
constituted and lasts as long as any of its beneficiaries under Art. 154 13 actually resides therein. Moreover, the
family home should belong to the absolute community or conjugal partnership, or if exclusively by one spouse,
its constitution must have been with consent of the other, and its value must not exceed certain amounts
depending upon the area where it is

located. Further, the debts incurred for which the exemption does not apply as provided under Art. 155 14 for
which the family home is made answerable must have been incurred after August 3, 1988.1avvphi1

And in both cases, whether under the Civil Code or the Family Code, it is not sufficient that the person claiming
exemption merely alleges that such property is a family home. This claim for exemption must be set up and
proved.15

In the present case, since petitioners claim that the family home was constituted prior to August 3, 1988, or as
early as 1944, they must comply with the procedure mandated by the Civil Code. There being absolutely no
proof that the Pandacan property was judicially or extrajudicially constituted as the Ramos’ family home, the
law’s protective mantle cannot be availed of by petitioners. Parenthetically, the records show that the sheriff
exhausted all means to execute the judgment but failed because Ramos’ bank accounts 16 were already closed
while other properties in his or the company’s name had already been transferred, 17 and the only property left
was the Pandacan property.

WHEREFORE, the petition is DENIED.

SO ORDERED.
G.R. No. 177703 January 28, 2008
VILMA G. ARRIOLA and ANTHONY RONALD G. ARRIOLA, petitioners,
vs.
JOHN NABOR C. ARRIOLA, respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the
November 30, 2006 Decision1 and April 30, 2007 Resolution2 of the Court of Appeals in CA-G.R. SP No. 93570.
The relevant facts are culled from the records.
John Nabor C. Arriola (respondent) filed Special Civil Action No. 03-0010 with the Regional Trial Court, Branch
254, Las Piñas City (RTC) against Vilma G. Arriola and Anthony Ronald G. Arriola (petitioners) for judicial
partition of the properties of decedent Fidel Arriola (the decedent Fidel). Respondent is the son of decedent
Fidel with his first wife Victoria C. Calabia, while petitioner Anthony is the son of decedent Fidel with his second
wife, petitioner Vilma.
On February 16, 2004, the RTC rendered a Decision, the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered:
1. Ordering the partition of the parcel of land covered by Transfer Certificate of Title No. 383714
(84191) left by the decedent Fidel S. Arriola by and among his heirs John Nabor C. Arriola, Vilma G.
Arriola and Anthony Ronald G. Arriola in equal shares of one-third (1/3) each without prejudice to the
rights of creditors or mortgagees thereon, if any;
2. Attorney's fees in the amount of TEN THOUSAND (P10,000.00) PESOS is hereby awarded to be
reimbursed by the defendants to the plaintiff;
3. Costs against the defendants.
SO ORDERED.3
The decision became final on March 15, 2004. 4
As the parties failed to agree on how to partition among them the land covered by TCT No. 383714 (subject
land), respondent sought its sale through public auction, and petitioners acceded to it. 5 Accordingly, the RTC
ordered the public auction of the subject land. 6 The public auction sale was scheduled on May 31, 2003 but it
had to be reset when petitioners refused to include in the auction the house (subject house) standing on the
subject land.7 This prompted respondent to file with the RTC an Urgent Manifestation and Motion for Contempt
of Court,8 praying that petitioners be declared in contempt.
The RTC denied the motion in an Order9 dated August 30, 2005, for the reason that petitioners were justified in
refusing to have the subject house included in the auction, thus:
The defendants [petitioners] are correct in holding that the house or improvement erected on the
property should not be included in the auction sale.
A cursory reading of the aforementioned Decision and of the evidence adduced during the ex-parte
hearing clearly show that nothing was mentioned about the house existing on the land subject matter
of the case. In fact, even plaintiff's [respondent's] initiatory Complaint likewise did not mention anything
about the house. Undoubtedly therefore, the Court did not include the house in its adjudication of the
subject land because it was plaintiff himself who failed to allege the same. It is a well-settled rule that
the court can not give a relief to that which is not alleged and prayed for in the complaint.
To hold, as plaintiff argued, that the house is considered accessory to the land on which it is built is in
effect to add to plaintiff's [a] right which has never been considered or passed upon during the trial on
the merits.
In the absence of any other declaration, obvious or otherwise, only the land should be partitioned in
accordance to[sic] the aforementioned Decision as the house can not be said to have been
necessarily adjudicated therein. Thus, plaintiff can not be declared as a co-owner of the same house
without evidence thereof and due hearing thereon.
The Decision of the Court having attained its finality, as correctly pointed out, judgment must stand
even at the risk that it might be erroneous.
WHEREFORE, the Urgent Manifestation and Motion for Contempt of Court filed by plaintiff is hereby
DENIED for lack of merit.
SO ORDERED.10
The RTC, in its Order dated January 3, 2006, denied respondent's Motion for Reconsideration. 11
Respondent filed with the CA a Petition for Certiorari12 where he sought to have the RTC Orders set aside, and
prayed that he be allowed to proceed with the auction of the subject land including the subject house.
In its November 30, 2006 Decision, the CA granted the Petition for Certiorari, to wit:
WHEREFORE, the petition is GRANTED. The assailed orders dated August 30, 2005 and January 3,
2006 issued by the RTC, in Civil Case No. SCA 03-0010, are REVERSED and SET ASIDE, and the
sheriff is ordered to proceed with the public auction sale of the subject lot covered by TCT No.
383714, including the house constructed thereon.
SO ORDERED.13 (Emphasis supplied.)
Petitioners filed a motion for reconsideration but the CA denied the same in its Resolution14 of April 30, 2007.
Hence, the present petition on the sole ground that the CA erred in holding that the RTC committed grave
abuse of discretion in denying the motion for contempt of court.
The assailed CA Decision and Resolution must be modified for reasons other than those advanced by
petitioners.
The contempt proceeding initiated by respondent was one for indirect contempt. Section 4, Rule 71 of the Rules
of Court prescribes the procedure for the institution of proceedings for indirect contempt, viz:
Sec. 4. How proceedings commenced. – Proceedings for indirect contempt may be initiated motu
proprio by the court against which the contempt was committed by an order or any other formal charge
requiring the respondent to show cause why he should not be punished for contempt.
In all other cases, charges for indirect contempt shall be commenced by a verified petition with
supporting particulars and certified true copies of documents or papers involved therein, and
upon full compliance with the requirements for filing initiatory pleadings for civil actions in the
court concerned. If the contempt charges arose out of or are related to a principal action pending in
the court, the petition for contempt shall allege that fact but said petition shall be docketed, heard and
decided separately, unless the court in its discretion orders the consolidation of the contempt charge
and the principal action for joint hearing and decision. (Emphases supplied.)
Under the aforecited second paragraph of the Rules, the requirements for initiating an indirect contempt
proceeding are a) that it be initiated by way of a verified petition and b) that it should fully comply with the
requirements for filing initiatory pleadings for civil actions. In Regalado v. Go,15 we held:
 As explained by Justice Florenz Regalado, the filing of a verified petition that has complied with
the requirements for the filing of initiatory pleading, is mandatory x x x:
This new provision clarifies with a regularity norm the proper procedure for commencing
contempt proceedings. While such proceeding has been classified as special civil action
under the former Rules, the heterogenous practice tolerated by the courts, has been for any
party to file a motion without paying any docket or lawful fees therefore and without
complying with the requirements for initiatory pleadings, which is now required in the second
paragraph of this amended section.
xxxx
Henceforth, except for indirect contempt proceedings initiated motu propio by order of or a
formal charge by the offended court, all charges shall be commenced by a verified petition
with full compliance with the requirements therefore and shall be disposed in accordance
with the second paragraph of this section.
xxxx
Even if the contempt proceedings stemmed from the main case over which the court
already acquired jurisdiction, the rules direct that the petition for contempt be treated
independently of the principal action. Consequently, the necessary prerequisites for
the filing of initiatory pleadings, such as the filing of a verified petition, attachment of
a certification on non-forum shopping, and the payment of the necessary docket fees,
must be faithfully observed.
xxxx
The provisions of the Rules are worded in very clear and categorical language. In case where the
indirect contempt charge is not initiated by the courts, the filing of a verified petition which fulfills the
requirements on initiatory pleadings is a prerequisite. Beyond question now is the mandatory
requirement of a verified petition in initiating an indirect contempt proceeding. Truly, prior to the
amendment of the 1997 Rules of Civil Procedure, mere motion without complying with the
requirements for initiatory pleadings was tolerated by the courts. At the onset of the 1997 Revised
Rules of Civil Procedure, however, such practice can no longer be countenanced. 16 (Emphasis ours.)
The RTC erred in taking jurisdiction over the indirect contempt proceeding initiated by respondent. The latter did
not comply with any of the mandatory requirements of Section 4, Rule 71. He filed a mere Urgent Manifestation
and Motion for Contempt of Court, and not a verified petition. He likewise did not conform with the requirements
for the filing of initiatory pleadings such as the submission of a certification against forum shopping and the
payment of docket fees. Thus, his unverified motion should have been dismissed outright by the RTC.
It is noted though that, while at first the RTC overlooked the infirmities in respondent's unverified motion for
contempt, in the end, it dismissed the motion, albeit on substantive grounds. The trouble is that, in the CA
decision assailed herein, the appellate court committed the same oversight by delving into the merits of
respondent's unverified motion and granting the relief sought therein. Thus, strictly speaking, the proper
disposition of the present petition ought to be the reversal of the CA decision and the dismissal of respondent's
unverified motion for contempt filed in the RTC for being in contravention of Section 4, Rule 71.
However, such simplistic disposition will not put an end to the dispute between the parties. A seed of litigation
has already been sown that will likely sprout into another case between them at a later time. We refer to the
question of whether the subject house should be included in the public auction of the subject land. Until this
question is finally resolved, there will be no end to litigation between the parties. We must therefore deal with it
squarely, here and now.
The RTC and the CA differed in their views on whether the public auction should include the subject house. The
RTC excluded the subject house because respondent never alleged its existence in his complaint for partition or
established his co-ownership thereof.17 On the other hand, citing Articles 440,18 44519 and 44620 of the Civil
Code, the CA held that as the deceased owned the subject land, he also owned the subject house which is a
mere accessory to the land. Both properties form part of the estate of the deceased and are held in co-
ownership by his heirs, the parties herein. Hence, the CA concludes that any decision in the action for partition
of said estate should cover not just the subject land but also the subject house. 21 The CA further pointed out
that petitioners themselves implicitly recognized the inclusion of the subject house in the partition of the subject
land when they proposed in their letter of August 5, 2004, the following swapping-arrangement:
Sir:
Thank you very much for accommodating us even if we are only poor and simple people. We are very
much pleased with the decision of Presiding Judge Manuel B. Fernandez, Jr., RTC Br. 254, Las Piñas,
on the sharing of one-third (1/3) each of a land covered by Transfer Certificate of Title No. 383714
(84191) in Las Piñas City.
However, to preserve the sanctity of our house which is our residence for more than twenty (20) years,
we wish to request that the 1/3 share of John Nabor C. Arriola be paid by the defendants depending
on the choice of the plaintiff between item (1) or item (2), detailed as follows:
(1) Swap with a 500-square meters [sic] lot located at Baras Rizal x x x.
(2) Cash of P205,700.00 x x x.
x x x x.22
We agree that the subject house is covered by the judgment of partition for reasons postulated by the CA. We
qualify, however, that this ruling does not necessarily countenance the immediate and actual partition of the
subject house by way of public auction in view of the suspensive proscription imposed under Article 159 of The
Family Code which will be discussed forthwith.
It is true that the existence of the subject house was not specifically alleged in the complaint for partition. Such
omission notwithstanding, the subject house is deemed part of the judgment of partition for two compelling
reasons.
First, as correctly held by the CA, under the provisions of the Civil Code, the subject house is deemed part of
the subject land. The Court quotes with approval the ruling of the CA, to wit:
The RTC, in the assailed Order dated August 30, 2005 ratiocinated that since the house constructed
on the subject lot was not alleged in the complaint and its ownership was not passed upon during the
trial on the merits, the court cannot include the house in its adjudication of the subject lot. The court
further stated that it cannot give a relief to[sic] which is not alleged and prayed for in the complaint.
We are not persuaded.
To follow the foregoing reasoning of the RTC will in effect render meaningless the pertinent rule on
accession. In general, the right to accession is automatic (ipso jure), requiring no prior act on
the part of the owner or the principal. So that even if the improvements including the house
were not alleged in the complaint for partition, they are deemed included in the lot on which
they stand, following the principle of accession. Consequently, the lot subject of judicial
partition in this case includes the house which is permanently attached thereto, otherwise, it
would be absurd to divide the principal, i.e., the lot, without dividing the house which is
permanently attached thereto.23 (Emphasis supplied)
Second, respondent has repeatedly claimed that the subject house was built by the deceased. 24 Petitioners
never controverted such claim. There is then no dispute that the subject house is part of the estate of the
deceased; as such, it is owned in common by the latter's heirs, the parties herein, 25 any one of whom, under
Article 49426 of the Civil Code, may, at any time, demand the partition of the subject house. 27 Therefore,
respondent's recourse to the partition of the subject house cannot be hindered, least of all by the mere technical
omission of said common property from the complaint for partition.
That said notwithstanding, we must emphasize that, while we treat the subject house as part of the co-
ownership of the parties, we stop short of authorizing its actual partition by public auction at this time.
It bears emphasis that an action for partition involves two phases: first, the declaration of the existence of a
state of co-ownership; and second, the actual termination of that state of co-ownership through the segregation
of the common property.28 What is settled thus far is only the fact that the subject house is under the co-
ownership of the parties, and therefore susceptible of partition among them.
Whether the subject house should be sold at public auction as ordered by the RTC is an entirely different
matter, depending on the exact nature of the subject house.
Respondent claims that the subject house was built by decedent Fidel on his exclusive property. 29 Petitioners
add that said house has been their residence for 20 years.30 Taken together, these averments on record
establish that the subject house is a family home within the contemplation of the provisions of The Family Code,
particularly:
More importantly, Article 159 imposes the proscription against the immediate partition of the family home
regardless of its ownership. This signifies that even if the family home has passed by succession to the co-
ownership of the heirs, or has been willed to any one of them, this fact alone cannot transform the family home
into an ordinary property, much less dispel the protection cast upon it by the law. The rights of the individual co-
owner or owner of the family home cannot subjugate the rights granted under Article 159 to the beneficiaries of
the family home.
Set against the foregoing rules, the family home -- consisting of the subject house and lot on which it stands --
cannot be partitioned at this time, even if it has passed to the co-ownership of his heirs, the parties herein.
Decedent Fidel died on March 10, 2003.32 Thus, for 10 years from said date or until March 10, 2013, or for a
longer period, if there is still a minor beneficiary residing therein, the family home he constituted cannot be
partitioned, much less when no compelling reason exists for the court to otherwise set aside the restriction and
order the partition of the property.
The Court ruled in Honrado v. Court of Appeals33 that a claim for exception from execution or forced sale under
Article 153 should be set up and proved to the Sheriff before the sale of the property at public auction. Herein
petitioners timely objected to the inclusion of the subject house although for a different reason.

Article 152. The family home, constituted jointly by the husband and the wife or by an unmarried head
of a family, is the dwelling house where they and their family reside, and the land on which it is
situated.
Article 153. The family home is deemed constituted on a house and lot from the time it is occupied
as a family residence. From the time of its constitution and so long as any of its beneficiaries actually
resides therein, the family home continues to be such and is exempt from execution, forced sale or
attachment except as hereinafter provided and to the extent of the value allowed by law. (Emphasis
supplied.)
To recapitulate, the evidence of record sustain the CA ruling that the subject house is part of the judgment of
co-ownership and partition. The same evidence also establishes that the subject house and the portion of the
subject land on which it is standing have been constituted as the family home of decedent Fidel and his heirs.
Consequently, its actual and immediate partition cannot be sanctioned until the lapse of a period of 10 years
from the death of Fidel Arriola, or until March 10, 2013.
It bears emphasis, however, that in the meantime, there is no obstacle to the immediate public auction of the
portion of the subject land covered by TCT No. 383714, which falls outside the specific area of the family
home.

One significant innovation introduced by The Family Code is the automatic constitution of the family home from WHEREFORE, the petition is PARTLY GRANTED and the November 30, 2006 Decision and April 30, 2007
the time of its occupation as a family residence, without need anymore for the judicial or extrajudicial processes Resolution of the Court of Appeals are MODIFIED in that the house standing on the land covered by Transfer
provided under the defunct Articles 224 to 251 of the Civil Code and Rule 106 of the Rules of Court. Certificate of Title No. 383714 is DECLARED part of the co-ownership of the parties John Nabor C. Arriola,
Furthermore, Articles 152 and 153 specifically extend the scope of the family home not just to the dwelling Vilma G. Arriola and Anthony Ronald G. Arriola but EXEMPTED from partition by public auction within the
structure in which the family resides but also to the lot on which it stands. Thus, applying these concepts, the period provided for in Article 159 of the Family Code.
subject house as well as the specific portion of the subject land on which it stands are deemed constituted as a
family home by the deceased and petitioner Vilma from the moment they began occupying the same as a family No costs.
residence 20 years back.31
SO ORDERED.
It being settled that the subject house (and the subject lot on which it stands) is the family home of the
deceased and his heirs, the same is shielded from immediate partition under Article 159 of The Family
Code, viz:

Article 159. The family home shall continue despite the death of one or both spouses or of the
unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary,
and the heirs cannot partition the same unless the court finds compelling reasons
therefor. This rule shall apply regardless of whoever owns the property or constituted the
family home. (Emphasis supplied.)

The purpose of Article 159 is to avert the disintegration of the family unit following the death of its head. To this
end, it preserves the family home as the physical symbol of family love, security and unity by imposing the
following restrictions on its partition: first, that the heirs cannot extra-judicially partition it for a period of 10 years
from the death of one or both spouses or of the unmarried head of the family, or for a longer period, if there is
still a minor beneficiary residing therein; and second, that the heirs cannot judicially partition it during the
aforesaid periods unless the court finds compelling reasons therefor. No compelling reason has been alleged by
the parties; nor has the RTC found any compelling reason to order the partition of the family home, either by
physical segregation or assignment to any of the heirs or through auction sale as suggested by the parties.
G.R. No. 86355 May 31, 1990
JOSE MODEQUILLO, petitioner,
vs.
HON. AUGUSTO V. BREVA FRANCISCO SALINAS, FLORIPER ABELLAN-SALINAS, JUANITO CULAN-
CULAN and DEPUTY SHERIFF FERNANDO PLATA respondents.
Josefina Brandares-Almazan for petitioner.
ABC Law Offices for private respondents.
GANCAYCO, J.:
The issue in this petition is whether or not a final judgment of the Court of Appeals in an action for damages
may be satisfied by way of execution of a family home constituted under the Family Code.
The facts are undisputed.
On January 29, 1988, a judgment was rendered by the Court of Appeals in CA-G.R. CV No. 09218
entitled "Francisco Salinas, et al. vs. Jose Modequillo, et al.," the dispositive part of which read as follows:
WHEREFORE, the decision under appeal should be, as it is hereby, reversed and set aside.
Judgment is hereby rendered finding the defendants-appellees Jose Modequillo and Benito
Malubay jointly and severally liable to plaintiffs-appellants as hereinbelow set forth.
Accordingly, defendants-appellees are ordered to pay jointly and severally to:
1. Plaintiffs-appellants, the Salinas spouses:
a. the amount of P30,000.00 by way of compensation for the death of their son Audie
Salinas;
b. P10,000.00 for the loss of earnings by reason of the death of said Audie Salinas;
c. the sum of P5,000.00 as burial expenses of Audie Salinas; and
d. the sum of P5,000.00 by way of moral damages.
2. Plaintiffs-appellants Culan-Culan:
a. the sum of P5,000.00 for hospitalization expenses of Renato Culan- Culan; and
b. P5,000.00 for moral damages.
3. Both plaintiff-appellants Salinas and Culan-Culan, P7,000.00 for attorney's fees and
litigation expenses.
All counterclaims and other claims are hereby dismissed. 1 Under the Family Code, a family home is deemed constituted on a house and lot from the time it is occupied as
The said judgment having become final and executory, a writ of execution was issued by the Regional Trial
Court of Davao City to satisfy the said judgment on the goods and chattels of the defendants Jose Modequillo
and Benito Malubay at Malalag, Davao del Sur.
On July 7, 1988, the sheriff levied on a parcel of residential land located at Poblacion Malalag, Davao del Sur
containing an area of 600 square meters with a market value of P34,550.00 and assessed value of P7,570.00
per Tax Declaration No. 87008-01359, registered in the name of Jose Modequillo in the office of the Provincial
Assessor of Davao del Sur; and a parcel of agricultural land located at Dalagbong Bulacan, Malalag, Davao del
Sur containing an area of 3 hectares with a market value of P24,130.00 and assessed value of P9,650.00 per
Tax Declaration No. 87-08-01848 registered in the name of Jose Modequillo in the office of the Provincial
Assessor of Davao del Sur. 2
A motion to quash and/or to set aside levy of execution was filed by defendant Jose Modequillo alleging therein
that the residential land located at Poblacion Malalag is where the family home is built since 1969 prior to the
commencement of this case and as such is exempt from execution, forced sale or attachment under Articles
152 and 153 of the Family Code except for liabilities mentioned in Article 155 thereof, and that the judgment
debt sought to be enforced against the family home of defendant is not one of those enumerated under Article
155 of the Family Code. As to the agricultural land although it is declared in the name of defendant it is alleged
to be still part of the public land and the transfer in his favor by the original possessor and applicant who was a
member of a cultural minority was not approved by the proper government agency. An opposition thereto was
filed by the plaintiffs.
In an order dated August 26, 1988, the trial court denied the motion. A motion for reconsideration thereof was
filed by defendant and this was denied for lack of merit on September 2, 1988.
Hence, the herein petition for review on certiorari wherein it is alleged that the trial court erred and acted in
excess of its jurisdiction in denying petitioner's motion to quash and/or to set aside levy on the properties and in
denying petitioner' motion for reconsideration of the order dated August 26, 1988. Petitioner contends that only
a question of law is involved in this petition. He asserts that the residential house and lot was first occupied as
his family residence in 1969 and was duly constituted as a family home under the Family Code which took effect
on August 4, 1988. Thus, petitioner argues that the said residential house and lot is exempt from payment of the
obligation enumerated in Article 155 of the Family Code; and that the decision in this case pertaining to
damages arising from a vehicular accident took place on March 16, 1976 and which became final in 1988 is not
one of those instances enumerated under Article 155 of the Family Code when the family home may be levied
upon and sold on execution. It is further alleged that the trial court erred in holding that the said house and lot
became a family home only on August 4, 1988 when the Family Code became effective, and that the Family
Code cannot be interpreted in such a way that all family residences are deemed to have been constituted as
family homes at the time of their occupancy prior to the effectivity of the said Code and that they are exempt
from execution for the payment of obligations incurred before the effectivity of said Code; and that it also erred
when it declared that Article 162 of the Family Code does not state that the provisions of Chapter 2, Title V have
a retroactive effect.
Articles 152 and 153 of the Family Code provide as follows:
Art. 152. The family home, constituted jointly by the husband and the wife or by an
unmarried head of a family, is the dwelling house where they and their family reside, and the
land on which it is situated.
Art. 153. The family home is deemed constituted on a house and lot from the time it is
occupied as a family residence. From the time of its constitution and so long as any of its
beneficiaries actually resides therein, the family home continues to be such and is exempt
from execution, forced sale or attachment except as hereinafter provided and to the extent of
the value allowed by law.
a family residence. There is no need to constitute the same judicially or extrajudicially as required in the Civil
Code. If the family actually resides in the premises, it is, therefore, a family home as contemplated by law. Thus,
the creditors should take the necessary precautions to protect their interest before extending credit to the
spouses or head of the family who owns the home.
Article 155 of the Family Code also provides as follows:
Art. 155. The family home shall be exempt from execution, forced sale or attachment except:
(1) For non-payment of taxes;
 (2) For debts incurred prior to the constitution of the family home;

(3) For debts secured by mortgages on the premises before or after such constitution; and

(4) For debts due to laborers, mechanics, architects, builders, material men and others who
have rendered service or furnished material for the construction of the building.

The exemption provided as aforestated is effective from the time of the constitution of the family home as such,
and lasts so long as any of its beneficiaries actually resides therein.

In the present case, the residential house and lot of petitioner was not constituted as a family home whether
judicially or extrajudicially under the Civil Code. It became a family home by operation of law only under Article
153 of the Family Code. It is deemed constituted as a family home upon the effectivity of the Family Code on
August 3, 1988 not August 4, one year after its publication in the Manila Chronicle on August 4, 1987 (1988
being a leap year).

The contention of petitioner that it should be considered a family home from the time it was occupied by
petitioner and his family in 1969 is not well- taken. Under Article 162 of the Family Code, it is provided that "the
provisions of this Chapter shall also govern existing family residences insofar as said provisions are applicable."
It does not mean that Articles 152 and 153 of said Code have a retroactive effect such that all existing family
residences are deemed to have been constituted as family homes at the time of their occupation prior to the
effectivity of the Family Code and are exempt from execution for the payment of obligations incurred before the
effectivity of the Family Code. Article 162 simply means that all existing family residences at the time of the
effectivity of the Family Code, are considered family homes and are prospectively entitled to the benefits
accorded to a family home under the Family Code. Article 162 does not state that the provisions of Chapter 2,
Title V have a retroactive effect.

Is the family home of petitioner exempt from execution of the money judgment aforecited No. The debt or
liability which was the basis of the judgment arose or was incurred at the time of the vehicular accident on
March 16, 1976 and the money judgment arising therefrom was rendered by the appellate court on January 29,
1988. Both preceded the effectivity of the Family Code on August 3, 1988. This case does not fall under the
exemptions from execution provided in the Family Code.

As to the agricultural land subject of the execution, the trial court correctly ruled that the levy to be made by the
sheriff shall be on whatever rights the petitioner may have on the land.

WHEREFORE, the petition is DISMISSED for lack of merit. No pronouncement as to costs.

SO ORDERED.
G.R. No. 165060 November 27, 2008
ALBINO JOSEF, petitioner,
vs.
OTELIO SANTOS, respondent.
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari under Rule 45 of the Rules of Court assails the November 17,
20031 Resolution of the Court of Appeals in CA-G.R. SP No. 80315, dismissing petitioner’s special civil action of
certiorari for failure to file a prior motion for reconsideration, and the May 7, 20042 Resolution denying the
motion for reconsideration.
Petitioner Albino Josef was the defendant in Civil Case No. 95-110-MK, which is a case for collection of sum of
money filed by herein respondent Otelio Santos, who claimed that petitioner failed to pay the shoe materials
which he bought on credit from respondent on various dates in 1994.
After trial, the Regional Trial Court of Marikina City, Branch 272, found petitioner liable to respondent in the
amount of P404,836.50 with interest at 12% per annum reckoned from January 9, 1995 until full payment. 3
Petitioner appealed4 to the Court of Appeals, which affirmed the trial court’s decision in toto. 5 Petitioner filed
before this Court a petition for review on certiorari, but it was dismissed in a Resolution dated February 18,
2002.6 The Judgment became final and executory on May 21, 2002.
On February 17, 2003, respondent moved for issuance of a writ of execution, 7 which was opposed by
petitioner.8 In an Order dated July 16, 2003,9 the trial court granted the motion, the dispositive portion of which
reads, as follows:
WHEREFORE, premises considered, the motion for issuance of writ of execution is hereby granted.
Let a writ of execution be issued commanding the Sheriff of this Court to execute the decision dated
December 18, 1996.
SO ORDERED.10
A writ of execution was issued on August 20, 200311 and enforced on August 21, 2003. On August 29, 2003,
certain personal properties subject of the writ of execution were auctioned off. Thereafter, a real property
located at Marikina City and covered by Transfer Certificate of Title (TCT) No. N-105280 was sold on October
28, 2003 by way of public auction to fully satisfy the judgment credit. Respondent emerged as the winning
bidder and a Certificate of Sale12 dated November 6, 2003 was issued in his favor.
On November 5, 2003, petitioner filed an original petition for certiorari with the Court of Appeals, questioning the
sheriff’s levy and sale of the abovementioned personal and real properties. Petitioner claimed that the personal
properties did not belong to him but to his children; and that the real property covered by TCT No. N-105280
was his family home thus exempt from execution.
On November 17, 2003, the Court of Appeals issued the assailed Resolution dismissing the petition for failure of
petitioner to file a motion for reconsideration of the trial court’s July 16, 2003 Order granting the motion for
execution and ordering the issuance of a writ therefor, as well as for his failure to indicate in his petition the
timeliness of its filing as required under the Rules of Court. On May 7, 2004, the appellate court denied
petitioner’s motion for reconsideration.
Thus, the instant petition which raises the following issues:
I.
WHETHER OR NOT THE LEVY AND SALE OF THE PERSONAL BELONGINGS OF THE
PETITIONER’S CHILDREN AS WELL AS THE ATTACHMENT AND SALE ON PUBLIC AUCTION OF
HIS FAMILY HOME TO SATISFY THE JUDGMENT AWARD IN FAVOR OF RESPONDENT IS
LEGAL.
II.
WHETHER OR NOT THE DISMISSAL OF THE PETITIONER’S PETITION FOR CERTIORARI BY
THE HONORABLE COURT OF APPEALS IS JUSTIFIED UNDER THE CIRCUMSTANCES.
Petitioner argues that the trial court sheriff erroneously attached, levied and sold on execution the real property
covered by TCT No. N-105280 because the same is his family home; that the execution sale was irregular
because it was conducted without complying with the notice and posting of requirements; and that the personal
and real properties were sold for inadequate prices as to shock the conscience. The real property was allegedly
worth P8 million but was sold for only P848,448.64.
Petitioner also argues that the appellate court gravely abused its discretion in dismissing the petition based
purely on technical grounds, i.e., his failure to file a motion for reconsideration of the trial court’s order granting
execution, and his failure to indicate in his petition for certiorari the timeliness of filing the same with the Court of
Appeals.
Respondent, on the other hand, argues that petitioner’s alleged family home has not been shown to have been
judicially or extrajudicially constituted, obviously referring to the provisions on family home of the Civil Code –
not those of the Family Code which should apply in this case; that petitioner has not shown to the court’s
satisfaction that the personal properties executed upon and sold belonged to his children. Respondent argues
that he is entitled to satisfaction of judgment considering the length of time it took for the parties to litigate and
the various remedies petitioner availed of which have delayed the case.
The petition is meritorious.
Petitioner, in his opposition to respondent’s motion for issuance of a writ of execution, claimed that he was
insolvent; that he had no property to answer for the judgment credit; that the house and lot in which he was
residing at the time was his family home thus exempt from execution; that the household furniture and
appliances found therein are likewise exempt from execution; and that these furniture and appliances belonged
to his children Jasmin Josef and Jean Josef Isidro. Thus, as early as during proceedings prior to the issuance of
the writ of execution, petitioner brought to the fore the issue of exemption from execution of his home, which he
claimed to be a family home in contemplation of the civil law.
However, instead of inquiring into the nature of petitioner’s allegations in his opposition, the trial court ignored
the same and granted respondent’s motion for execution. The full text of the July 16, 2003 Order provides, as
follows:
This resolves the "Motion for the Issuance of Writ of Execution" filed by plaintiff thru counsel and the
"Opposition" thereto filed by the defendant on her own behalf.
The records show that a decision was rendered by this Court in favor of the plaintiff on December 18,
1995 which decision was affirmed by the Court of Appeals on June 26, 2001 and by the Supreme
Court on February 18, 2002. On June 18, 2003, this Court received the entire records of the case from
the Court of Appeals.
Considering the foregoing, it is now the ministerial duty of the Court to issue a writ of execution
pursuant to Sec. 1, Rule 39 of the Rules of Court.
WHEREFORE, premises considered, the motion for issuance of writ of execution is hereby granted.
Let a writ of execution be issued commanding the Sheriff of this Court to execute the decision dated
December 18, 1996.
 SO ORDERED.13
The above Order did not resolve nor take into account petitioner’s allegations in his Opposition, which are
material and relevant in the resolution of the motion for issuance of a writ of execution. This is serious error on
the part of the trial court. It should have made an earnest determination of the truth to petitioner’s claim that the
house and lot in which he and his children resided was their duly constituted family home. Since it did not, its
July 16, 2003 Order is thus null and void. Where a judgment or judicial order is void it may be said to be a
lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it
exhibits its head.14
The family home is a real right which is gratuitous, inalienable and free from attachment, constituted over the
dwelling place and the land on which it is situated, which confers upon a particular family the right to enjoy such
properties, which must remain with the person constituting it and his heirs. It cannot be seized by creditors
except in certain special cases.15
Upon being apprised that the property subject of execution allegedly constitutes petitioner’s family home, the
trial court should have observed the following procedure:
1. Determine if petitioner’s obligation to respondent falls under either of the exceptions under Article
15516 of the Family Code;
2. Make an inquiry into the veracity of petitioner’s claim that the property was his family
home;17 conduct an ocular inspection of the premises; an examination of the title; an interview of
members of the community where the alleged family home is located, in order to determine if
petitioner actually resided within the premises of the claimed family home; order a submission of
photographs of the premises, depositions, and/or affidavits of proper individuals/parties; or a solemn
examination of the petitioner, his children and other witnesses. At the same time, the respondent is
given the opportunity to cross-examine and present evidence to the contrary;
3. If the property is accordingly found to constitute petitioner’s family home, the court should
determine:
a) if the obligation sued upon was contracted or incurred prior to, or after, the effectivity of
the Family Code;18
b) if petitioner’s spouse is still alive, as well as if there are other beneficiaries of the family
home;19
c) if the petitioner has more than one residence for the purpose of determining which of
them, if any, is his family home;20 and
d) its actual location and value, for the purpose of applying the provisions of Articles
15721 and 16022 of the Family Code.
The family home is the dwelling place of a person and his family, a sacred symbol of family love and repository
of cherished memories that last during one’s lifetime.23 It is the sanctuary of that union which the law declares
and protects as a sacred institution; and likewise a shelter for the fruits of that union. It is where both can seek
refuge and strengthen the tie that binds them together and which ultimately forms the moral fabric of our nation.
The protection of the family home is just as necessary in the preservation of the family as a basic social
institution, and since no custom, practice or agreement destructive of the family shall be recognized or given
effect,24 the trial court’s failure to observe the proper procedures to determine the veracity of petitioner’s
allegations, is unjustified.
The same is true with respect to personal properties levied upon and sold at auction. Despite petitioner’s
allegations in his Opposition, the trial court did not make an effort to determine the nature of the same, whether
the items were exempt from execution or not, or whether they belonged to petitioner or to someone else.25
Respondent moved for issuance of a writ of execution on February 17, 2003 while petitioner filed his opposition
on June 23, 2003. The trial court granted the motion on July 16, 2003, and the writ of execution was issued on
August 20, 2003. Clearly, the trial court had enough time to conduct the crucial inquiry that would have spared
petitioner the trouble of having to seek relief all the way to this Court. Indeed, the trial court’s inaction on
petitioner’s plea resulted in serious injustice to the latter, not to mention that its failure to conduct an inquiry
based on the latter’s claim bordered on gross ignorance of the law.
Being void, the July 16, 2003 Order could not have conferred any right to respondent. Any writ of execution
based on it is likewise void. Although we have held in several cases 26 that a claim for exemption from execution
of the family home should be set up and proved before the sale of the property at public auction, and failure to
do so would estop the party from later claiming the exemption since the right of exemption is a personal
privilege granted to the judgment debtor which must be claimed by the judgment debtor himself at the time of
the levy or within a reasonable period thereafter, the circumstances of the instant case are different. Petitioner
claimed exemption from execution of his family home soon after respondent filed the motion for issuance of a
writ of execution, thus giving notice to the trial court and respondent that a property exempt from execution may
be in danger of being subjected to levy and sale. Thereupon, the trial court is called to observe the procedure as
herein laid out; on the other hand, the respondent should observe the procedure prescribed in Article 160 of the
Family Code, that is, to obtain an order for the sale on execution of the petitioner’s family home, if so, and apply
the proceeds – less the maximum amount allowed by law under Article 157 of the Code which should remain
with the petitioner for the rebuilding of his family home – to his judgment credit. Instead, both the trial court and
respondent completely ignored petitioner’s argument that the properties subject of the writ are exempt from
execution.
Indeed, petitioner’s resort to the special civil action of certiorari in the Court of Appeals was belated and without
benefit of the requisite motion for reconsideration, however, considering the gravity of the issue, involving as it
does matters that strike at the very heart of that basic social institution which the State has a constitutional and
moral duty to preserve and protect, as well as petitioner’s constitutional right to abode, all procedural infirmities
occasioned upon this case must take a back seat to the substantive questions which deserve to be answered in
full.
WHEREFORE, the Petition for Review on Certiorari is GRANTED. The November 17, 2003 and May 7, 2004
Resolutions of the Court of Appeals in CA-G.R. SP No. 80315 are REVERSED and SET ASIDE. The July 16,
2003 Order of the Regional Trial Court of Marikina City, Branch 272 in Civil Case No. 95-110-MK, as well as the
writ or writs of execution thus issued in said case, are hereby DECLARED VOID, and all acts proceeding
therefrom and any title obtained by virtue thereof are likewise DECLARED VOID.
The trial court is hereby DIRECTED (1) to conduct a solemn inquiry into the nature of the real property covered
by Transfer Certificate of Title No. N-105280, with a view toward determining whether the same is petitioner
Albino Josef’s family home, and if so, apply the pertinent provisions of the Family Code and Rule 39 of the
Rules of Court; and (2) to conduct an inquiry into the ownership of all other properties that were levied upon and
sold, with the aim of determining as well whether these properties are exempt from execution under existing
law.
Respondent Otelio Santos is hereby DIRECTED to hold the abovementioned real and personal properties, or
the proceeds thereof, in trust to await the outcome of the trial court’s inquiry.
Finally, the trial court is DIRECTED to resolve, with utmost dispatch, Civil Case No. 95-110-MK within sixty (60)
days from receipt of a copy of this Decision.
SO ORDERED.
G.R. No. 172263 July 9, 2008
SPOUSES AUTHER G. KELLEY, JR. and DORIS A. KELLEY, Complainants, vs. PLANTERS PRODUCTS,
INC. and JORGE A. RAGUTANA,1 Respondents.
RESOLUTION
CORONA, J.:
Petitioner Auther G. Kelley, Jr. (Auther) acquired agricultural chemical products on consignment from
respondent Planters Products, Inc. (PPI) in 1989. Due to Auther’s failure to pay despite demand, PPI filed an
action for sum of money against him in the Regional Trial Court of Makati City, Branch 57 (RTC Makati City).
This was docketed as Civil Case No. 91-904.
After trial on the merits, the RTC Makati City decided in favor of PPI and issued a writ of execution. Pursuant
thereto, respondent sheriff Jorge A. Ragutana sold on execution real property covered by TCT No. 15079
located in Naga City. A certificate of sale was issued in favor of PPI as the highest bidder.
After being belatedly informed of the said sale, petitioners Auther and his wife Doris A. Kelley (Doris) filed a
motion to dissolve or set aside the notice of levy in the RTC Makati City on the ground that the subject property
was their family home which was exempt from execution. Petitioners’ motion was denied for failure to comply
with the three-day notice requirement.
Subsequently, petitioners filed a complaint for declaration of nullity of levy and sale of the alleged family home
with damages against Ragutana and PPI in the Regional Trial Court of Naga City, Branch 19 (RTC Naga City).
This was docketed as Civil Case No. 2000-0188. The case was, however, dismissed for lack of jurisdiction and
lack of cause of action. The dismissal was upheld by the CA.
Petitioners now come to us in this petition for review on certiorari contending that the CA erred in upholding the
dismissal of Civil Case No. 2000-0188 by the RTC Naga City. They claim that Doris was a stranger 2 to Civil
Case No. 91-904 (in the RTC Makati City) who could not be forced to litigate therein.
Petitioners anchor their action in Civil Case No. 2000-0188 on their contention that TCT No. 15079 is the Kelley
family home. No doubt, a family home is generally exempt from execution 3 provided it was duly constituted as
such. There must be proof that the alleged family home was constituted jointly by the husband and wife or by an
unmarried head of a family.4 It must be the house where they and their family actually reside and the lot on
which it is situated.5 The family home must be part of the properties of the absolute community or the conjugal
partnership, or of the exclusive properties of either spouse with the latter’s consent, or on the property of the
unmarried head of the family.6 The actual value of the family home shall not exceed, at the time of its
constitution, the amount of ₱300,000 in urban areas and ₱200,000 in rural areas.7
Under the Family Code, there is no need to constitute the family home judicially or extrajudicially. All family
homes constructed after the effectivity of the Family Code (August 3, 1988) are constituted as such by operation
of law. All existing family residences as of August 3, 1988 are considered family homes and are prospectively
entitled to the benefits accorded to a family home under the Family Code. 8
The exemption is effective from the time of the constitution of the family home as such and lasts as long as any
of its beneficiaries actually resides therein. 9 Moreover, the debts for which the family home is made answerable
must have been incurred after August 3, 1988. Otherwise (that is, if it was incurred prior to August 3, 1988), the
alleged family home must be shown to have been constituted either judicially or extrajudicially pursuant to the
Civil Code.
The rule, however, is not absolute. The Family Code, in fact, expressly provides for the following exceptions:
Article 155. The family home shall be exempt from execution, forced sale or attachment except:
(1) For non-payment of taxes;
(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by a mortgage on the premises before or after such constitution; and
(4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have
rendered service or furnished material for the construction of the building.
xxx xxx xxx
Article 160. When a creditor whose claim is not among those mentioned in Article 155 obtains a judgment in his
favor, and he has reasonable grounds to believe that the family home is actually worth more than the maximum
amount fixed in Article 157, he may apply to the court which rendered the judgment for an order directing the
sale of the property under execution. The court shall so order if it finds that the actual value of the family home
exceeds the maximum amount allowed by law as of the time of its constitution. If the increased actual value
exceeds the maximum amount allowed by law in Article 157 and results from subsequent voluntary
improvements introduced by the person or persons constituting the family home, by the owner or owners of the
property, or by any of the beneficiaries, the same rule and procedure shall apply.
xxx xxx xxx
We grant the petition only to the extent of allowing petitioners to adduce evidence in the trial court that TCT No.
15079 is in fact their family home as constituted in accordance with the requirements of law. This is in
consonance with our ruling in Gomez v. Sta. Ines10 where we held:
[The husband and children] were not parties to the Pasig RTC case and are third-party claimants who became
such only after trial in the previous case had been terminated and the judgment therein had become final and
executory. Neither were they indispensable nor necessary parties in the Pasig RTC case, and they could not
therefore intervene in said case. As strangers to the original case, respondents cannot be compelled to present
their claim with the Pasig RTC which issued the writ of execution.xxx
In said case, the alleged family home was sold on execution by the sheriff of the Pasig RTC.1avvphi1 The
husband and children of the judgment debtor filed a complaint for annulment of sale of the levied property in
Bayombong, Nueva Vizcaya where the alleged family home was situated. As they were considered strangers to
the action filed in the Pasig RTC, we ruled that the Nueva Vizcaya RTC had jurisdiction over the complaint and
that they could vindicate their alleged claim to the levied property there. 11
WHEREFORE, Civil Case No. 2000-0188 captioned Spouses Auther G. Kelley, Jr. and Doris A. Kelley v.
Planters Products, Inc. and Jorge A. Ragutana is hereby REINSTATED and this case is hereby REMANDED to
the Regional Trial Court of Naga City, Branch 19 for determination whether or not the property covered by TCT
No. 15079 is a duly constituted family home and therefore exempt from execution. SO ORDERED.
G.R. No. 132537 October 14, 2005
MARY JOSEPHINE GOMEZ and EUGENIA SOCORRO C. GOMEZ-SALCEDO, Petitioners,
vs.
ROEL, NOEL and JANNETTE BEVERLY STA. INES and HINAHON STA. INES, Respondents.
DECISION
CHICO-NAZARIO, J.:
Before Us is a Petition for Review on Certiorari of the Decision1 of the Court of Appeals reversing the Order2 of
the Regional Trial Court (RTC) of Bayombong, Nueva Vizcaya, Branch 27, dismissing the complaint of herein
respondents for lack of jurisdiction.
The pertinent facts are as follows:
On 17 June 1986, Mary Josephine C. Gomez (Mary Josephine) and Eugenia Socorro C. Gomez-Salcedo
(Socorro) filed a complaint for damages before the RTC of Pasig against Marietta dela Cruz Sta. Ines (Marietta)
alleging that they are the children of the deceased Purificacion dela Cruz Gomez who, during her lifetime,
entrusted her rice land with an area of 25,087 square meters located at Bayombong, Nueva Vizcaya, to
Marietta, together with the Transfer Certificate of Title (TCT) No. 47082 covering said land, for the latter to
manage and supervise. Mary Josephine and Socorro further alleged that they have demanded for an
accounting of the produce of said rice land while under the management of Marietta, and for the return of the
TCT to the property, but the latter refused, thus compelling the sisters to file a civil case 3 before the Pasig RTC.
During the pre-trial conference of the case, both Marietta and her counsel failed to appear, thus, by motion of
counsel for Mary Josephine and Socorro, the trial court declared Marietta in default.
On 24 January 1989, the trial court rendered judgment against Marietta ordering her to deliver to Mary
Josephine and Socorro the owner’s copy of TCT No. 47082 and to pay ₱40,000.00 as moral damages,
₱20,000.00 as actual or compensatory damages, ₱30,000.00 as exemplary or corrective damages, and
₱15,000.00 as attorney’s fees.
After said judgment became final and executory, a writ of execution was issued by the Pasig RTC, by virtue of
which, a parcel of land (with improvements) located in Bayombong, Nueva Vizcaya, with an area of 432 square
meters, covered by TCT No. T-55314 registered in the name of Marietta dela Cruz Sta. Ines, was levied upon
by Flaviano Balgos, Jr., then Provincial Sheriff of Nueva Vizcaya, to satisfy the damages awarded in the civil
case. Said property was sold at a public auction on 25 August 1992 to Mary Josephine as the highest bidder.
The sale was registered with the Register of Deeds of Nueva Vizcaya on 17 September 1992.
On 12 July 1993, a complaint4 for annulment of said sale was filed before the RTC of Bayombong, Nueva
Vizcaya, by Hinahon Sta. Ines together with Noel, Roel, and Jannette, all named Sta. Ines, husband and
children of Marietta, respectively, against Mary Josephine and Sheriff Flaviano Balgos, Jr. on the ground that
said house and lot sold during the public auction is their family residence, and is thus exempt from execution
under Section 12(a), Rule 39 of the Rules of Court, and under Article 155 of the Family Code.
Mary Josephine moved to dismiss the complaint on the following grounds: 1) the Nueva Vizcaya RTC has no
jurisdiction over the case; 2) the plaintiffs have no legal capacity to sue; and 3) the complaint does not state a
cause of action.
Acting on the Motion to Dismiss, the Nueva Vizcaya RTC issued an Order on 10 November 1993 denying said
motion. According to the court a quo:
After studying the law, rules and jurisprudence, the Court is convinced that the motion to dismiss has no legal
basis.
On the claim that this court has no jurisdiction over the case, inasmuch as this case involves proceedings to
execute the decision of the Pasig RTC, it must be noted that the petitioners are not parties to the Pasig case.
They are third-party claimants who became such only after trial in the previous (the Pasig) case has been
terminated and the judgment therein has become final and executory. They are not indispensable nor
necessary parties in the Pasig case and they could not, therefore, even intervene in the said case.
Execution proceedings are entirely a different proceedings from the trial proper of a case inasmuch as trial
proper is conducted by the Court while execution proceedings are conducted by the Sheriff after the judgment in
a trial proper has become final and executory. The petitioners, therefore, could not, even if they wanted to,
intervene in the trial proper because they are neither indispensable nor necessary parties and because,
precisely, the trial was already over and the judgment has become final and executory.
But they could, as they have done, intervene in the execution stage because their rights have been violated by
the action of the sheriff. Under Section 17 of Rule 39, of the Rules of Court, the petitioners could, as they have
done, file an independent action to protect their rights. Under the Judiciary Reorganization Act and Section 2,
paragraph a, of Rule 4, Rules of Court, this Court can take cognizance of the action. There is, therefore, no
doubt that this court has jurisdiction over this case.
It must be mentioned that there are legal obstacles for the petitioners to seek remedy from the Pasig Court.
Firstly, they are not indispensable nor necessary parties to the Pasig case. Secondly, the judgment therein has
become final and executory. Thirdly, under paragraph a, Section 2 of Rule 4 of the Rules of Court, cases
involving real properties must be filed in the province where the property or any part thereof lies. The property
levied upon is located in the province of Nueva Vizcaya. Fourthly, as the judgment in the Pasig case has
become final and executory, the said Pasig court has already lost jurisdiction over the said case except in some
instances and the exception does not apply to this case.
While it is, therefore, true that conflicts of jurisdiction should be avoided, nonetheless, there can be no conflict of
jurisdiction in this case because there is no concurrent jurisdiction between the Pasig court and this court for
reasons already set forth above.
On the allegation that the petitioners have no legal capacity to sue, the court believes that they have, in fact,
that capacity to sue. Under Article 154 of the Family Code of the Philippines, the petitioner Hinahon Sta. Ines
and the other petitioners are beneficiaries of the Family home. Any one or all of them can, therefore, legally
question the execution, forced sale or attachment which is prohibited under Article 155 thereof. It should be
noted that, as already pointed out, the right of the petitioners as beneficiaries of the family home has been
violated when the said family home was levied upon on execution and sold in violation of the law.
As for lack of cause of action, the Court has already stated above that the right of the petitioners as
beneficiaries of the family home has been transgressed. They, therefore, have a cause of action against the
sheriff’s act of unlawfully levying upon and selling the rights, interests, title and participation in the land in
question and its improvement of Marietta dela Cruz-Sta. Ines.
Pertinently, it may be asked whether an undivided interest of the owner of the family home like Marietta Sta.
Ines can be levied upon on execution and this fact will not violate the prohibition on such levy found in the
Family Code.
The court believes that this can not be done.
Article 154 of the Family Code expressly enumerates the beneficiaries of a family home. If a person other than
any of those enumerated in Article 154 would be allowed to have an undivided interest in the family home, then
he becomes a beneficiary of such property in violation of the said provision under the principle of expressio
unius est exclusio alterius.
Moreover, Article 152 of the Family Code provides that "the family home, constituted jointly by the husband and
the wife x x x, is the dwelling house where they and their family reside, and the land on which it is situated."
The family home as defined by the said article can not be split in such a way that part of it, albeit undivided, is
owned by a non-beneficiary. To allow this would be to diminish the family home which can be used and enjoyed
by those entitled thereto under the law. This is so because whoever buys the undivided portion belonging to one
of the owners, as in this case, can demand an equal exercise of the right of co-ownership from the other
beneficiaries thereof. To the extent that such demand can be made effective, the full enjoyment of the property
by the beneficiaries thereof will be correspondingly diminished. The court believes that when the Family Code
allows the constitution of a family home, it does so with the idea that the beneficiaries thereof can have
untrammelled use and enjoyment thereof; hence, the express prohibition to levy on such property.
WHEREFORE, for lack of basis, the motion to dismiss is hereby DENIED. The respondent is hereby directed to
file her answer within 15 days from receipt of this Order.5
On 01 December 1993, herein petitioners filed a Motion for Reconsideration, which was then granted by the
Nueva Vizcaya RTC in an Order dated 28 January 1994. The trial court reasoned thus:
After restudying the jurisprudence involved in the motion for reconsideration impinging [sic] on the jurisdiction of
this court in relation to the execution of a judgment rendered by another Regional Trial Court (in Pasig, Metro
Manila), indeed, the only conclusion that can be honestly reached is that this court has no jurisdiction over the
nature of the herein action.
As correctly posited by the defendant’s counsel, it is the Pasig Regional Trial Court that should still exercise
jurisdiction over execution of its judgments, "a power that carries with it the right to determine every question of
fact and law which may be involved in the execution." (see GSIS vs. Guines, 219 SCRA 724; Darwin vs.
Takonaza, 197 SCRA 442). In fine, plaintiffs should have challenged the action of the Sheriffs in the civil case
wherein the judgment being executed was promulgated, and not in an independent action filed with a different
or even the same court.
WHEREFORE, for this court’s lack of jurisdiction to hear and decide this case, the instant action is hereby
DISMISSED, with costs de officio.6
Herein respondents filed a Motion for Reconsideration of said Order of dismissal which was denied by the lower
court in an Order dated 15 March 1994.
Aggrieved, respondents appealed said Order to the Court of Appeals raising the following errors: 1) the lower
court erred in holding that it lacks jurisdiction for the question presented in this case should have been brought
in the Pasig Court as a part of the proceedings therein and not as a separate case; and 2) the lower court erred
in holding that plaintiffs (herein respondents) cannot be considered third-party claimants.
In their Appellee’s Brief, herein petitioners assailed the jurisdiction of the appellate court to entertain the said
appeal arguing that the issues raised were purely questions of law which the Supreme Court has exclusive
appellate jurisdiction.
On 29 March 1996, the Court of Appeals rendered a Decision reversing the Order of dismissal. According to the
appellate court:
Section 17, Rule 39 of the Revised Rules of Court provides:
"Proceedings where property claimed by third person - If property levied on be claimed by any other person
than the judgment debtor or his agent, and such person make an affidavit of his title thereto or right to the
possession thereof, stating the grounds of such right or title, and served the same upon the officer making
the levy, and a copy thereof upon the judgment creditor, the officer shall not be bound to keep the property,
unless such judgment creditor or his agent, on demand of the officer, indemnify the officer against such claim by
a bond in a sum not greater than the value of the property levied on. xxx xxx xxx" (Italics supplied)
To fall within the ambit of a third-party claimant within the contemplation of the foregoing, it is not required that
one must claim title to the property levied upon, a claim to the right to the possession thereof being enough,
provided that the grounds of such right are amply explained.
The plaintiffs-appellants in this case claim in their complaint that they have occupied the house and lot subject
of the levy as a family residence since 1972 and that, under Articles 153 and 155 of the Family Code, the same
is exempt from execution. Additionally, if indeed the house and lot subject of this suit are components of a
family home, under Article 154 of the same Code, the plaintiffs are the beneficiaries thereof.
As such third-party claimants, plaintiffs-appellants may avail of the remedy known as "terceria" provided in
Section 17 above quoted, by serving upon the sheriff and the judgment creditor their affidavit attesting to their
right of possession of the property under the Family Code. Also, the plaintiffs-appellants, as third-party
claimants, may invoke the supervisory power of the Pasig Court, as explained in Ong vs. Tating, et al., 149
SCRA 265, and after a summary hearing, the Pasig Court may command that the house and lot be released
from the mistaken levy and restored to the rightful possessors or owners. But, as held in Ong vs.
Tating, supra, the Pasig Court is limited merely to the determination of whether the sheriff has acted rightly or
wrongly in the performance of his duties in the execution of judgment. The Pasig Court cannot pass upon the
question of title to or right to the possession of the property subject of the levy with any character of finality and
this question has to be resolved in a "proper action" entirely separate and distinct from that in which the
execution was issued, if instituted by a stranger to the latter suit (Sy vs. Discaya, 181 SCRA 378). Plaintiffs-
appellants are not impleaded as parties in the case decided by the Pasig Court. While, as previously stated,
plaintiffs-appellants may avail of the "terceria", or may apply for a summary hearing with the Pasig Court as
contemplated in Ong vs. Tating, supra, or may file an independent proper action to assert their right of
possession to the house and lot levied upon, such remedies are not comulative and may be resorted to by them
independent of or separately from and without need of availing of the others (Sy vs. Discaya, supra).
...
Given the foregoing premises, the Nueva Vizcaya Court was therefore in error in ousting itself of jurisdiction to
try Civil Case No. 5853 on the submission that it is only the Pasig Court, which decided Civil Case No. 53555,
that has general supervisory control over the execution of the judgment in said case, which carries with it, the
right to determine every question of fact and law which may be involved in the execution process.
Coming now to the issue of whether this Court has jurisdiction over this appeal.
The defendant-appellee maintains that since the issue raised in this appeal is purely a question of law, which is,
whether the Nueva Vizcaya Court erred in dismissing plaintiffs-appellants’ complaint, the latter should have
taken their case directly to the Supreme Court.
True it is, that it has been held in a number of cases, that there is a "question of law" when there is doubt or
difference of opinion as to what the law is on a certain state of facts and which does not call for an examination
of the probative value of the evidence presented by the litigants and that there is a "question of fact" when the
doubt or controversy arises as to the truth or falsity of the alleged facts (Far East Marble [Phils.], Inc. vs. Court
of Appeals, 225 SCRA 249 [1993]; Caiña vs. People, 213 SCRA 309 [1992]; Cheesman vs. Intermediate
Appellate Court, 193 SCRA 93 [1991]). But a reading of defendant-appellee’s Motion to Dismiss dated October
1, 1993 filed with the Nueva Vizcaya Court shows that she raised questions of fact in asserting that plaintiffs
have no legal capacity to sue, claiming that Marietta Dela Cruz Sta-Ines is not a party plaintiff in Civil Case No.
5853 and that the other plaintiffs are not real parties in interest. The determination of whether plaintiffs-
appellants are real parties in interest hinges on the factual issue of whether or not they are beneficiaries of a
family home within the contemplation of Article 154 of the Family Code and this would require the reception of
factual evidence as to whether said plaintiffs are really the husband and children of Marietta Sta. Ines and
whether they actually reside in the house and lot subject of Civil Case No. 5853 as to qualify said properties to
be considered a "family home" within the contemplation of Article 153 of the same Code. Moreover, defendant-
appellee argues that the complaint is premature as there is no Sheriff’s Final Deed of Sale yet. This, again is a
factual issue. There is likewise the question of whether the house and lot exclusively belong to Marietta Dela
Cruz Sta. Ines or whether they are conjugal properties, and if they are conjugal properties, whether they could
be levied upon to satisfy the personal liability of the defendant Marietta Sta. Ines in Civil Case No. 53555 of the
Pasig Court. Again, in the Order dated March 15, 1994 of the Nueva Vizcaya Court, it expressed doubts
whether plaintiffs-appellants are really "third-party claimants in the legal sense of the word" because the house
and lot levied upon in Civil Case No. 53555 exclusively belong to Marietta Dela Cruz Sta. Ines and the plaintiffs-
appellants seem to have no right thereto. As to whether the latter have a right to the house and lot is a question
that has to be resolved factually. The dispute or controversy in this case, therefore, would inevitably raise a
question of fact, and accordingly, the appeal to this Court is proper.
But prescinding from the question of whether the issue raised herein is purely one of law, it seems odd that if
the Nueva Vizcaya Court had ruled that it had jurisdiction over Civil Case No. 5853 and defendant-appellee
would seek to forthwith assail assumption of jurisdiction. She could do so only by way of certiorari filed with this
Court, and not with the Supreme Court, considering the prevailing principle upholding the so-called "hierarchy of
courts". But since the Nueva Vizcaya Court dismissed the complaint on ground of lack of jurisdiction, defendant-
appellee now vehemently argues that this Court has no jurisdiction to resolve the same issue which could have
been raised by her before this same Court had the ruling of the Nueva Vizcaya Court been different.
IN VIEW OF THE FOREGOING, the Order of the Court a quo dated January 28, 1994, dismissing plaintiffs-
appellants’ complaint for lack of jurisdiction, and the Order of the same Court dated March 15, 1994, denying
plaintiffs-appellants’ motion for reconsideration, are both REVERSED AND SET ASIDE. The Court a quo is
directed to proceed with the hearing of its Civil Case No. 5853 until its termination, and to thereafter decide the
case accordingly, as the evidence may warrant. 7
Petitioners’ Motion for Reconsideration was subsequently denied by the Court of Appeals. Claiming that the
appellate court committed serious and reversible errors of law in issuing its 29 March 1996 decision, petitioners
filed before this Court a Petition for Review on Certiorari, raising the following assignment of errors 8:
I.
The Court of Appeals committed serious error of law and grave abuse of discretion in ruling that the RTC of
Nueva Vizcaya had jurisdiction over the respondent’s petition.
II.
The Court of Appeals committed serious error of law and grave abuse of discretion in finding respondents as
proper third-party claimants.
III.
The Court of Appeals committed serious error of law and grave abuse of discretion in assuming jurisdiction of
the appeal of respondents that involves only questions of law; and in reversing the RTC of Nueva Vizcaya.
Ruling of the Court
First, we shall endeavor to dispose of the issue of whether or not the appellate court has jurisdiction to entertain
the appeal from the Order of dismissal.
Petitioners maintain that the question of whether or not the dismissal by the Nueva Vizcaya RTC of the
complaint filed by respondents due to lack of jurisdiction, lack of capacity to sue, and failure to state a cause of
action is a pure question of law which does not require evidence and should be resolved on the basis of the
allegations in the complaint alone. Petitioners further argue that the case involves only two issues: 1) whether or
not the Nueva Vizcaya RTC can annul and set aside an execution sale made by the sheriff pursuant to a writ of
execution issued by the Pasig RTC; and 2) whether or not the beneficiaries of a family home can claim
exemption from the execution under Art. 155 of the Family Code for wrongful acts committed by Marietta from
1977 up to 1986 before the effectivity of the Family Code on 03 August 1988. Petitioners conclude that the
disposition of these two issues does not necessitate the reception of factual evidence, thus, are clearly
questions of law.
We agree with petitioners that the appeal of respondents to the Court of Appeals raises only questions of law. It
must be stressed at this point that the appeal of respondents to the appellate court stemmed from the Order of
the Nueva Vizcaya RTC dated 28 January 1994 dismissing the complaint "for lack of jurisdiction to hear and
decide the case." Whether or not such dismissal is correct is neither a question of fact nor of fact and law; it
involves a pure question of law because what is to be resolved is whether, admitting the facts alleged in the
complaint to be true, the trial court has jurisdiction over it in the light of the laws governing jurisdiction. 9
There is a question of law when the issue does not call for an examination of the probative value of evidence
presented, the truth or falsehood of facts being admitted and the doubt concerns the correct application of law
and jurisprudence on the matter.10 On the other hand, there is a question of fact when the doubt or controversy
arises as to the truth or falsity of the alleged facts. When there is no dispute as to fact, the question of whether
or not the conclusion drawn therefrom is correct is a question of law. 11 In cases of motions to dismiss on ground
of lack of jurisdiction, the allegations in the complaint are deemed admitted. 12 Thus, the hypothetical admission
in a motion to dismiss of the facts alleged in the complaint renders them beyond dispute and forecloses any
issue of fact for purposes of the motion.13 And the question of whether the conclusion drawn therefrom for
purposes of applying the law on jurisdiction is accurate or correct is a question of law. 14
Therefore, respondents’ appeal having been improperly brought before the Court of Appeals, it should have
been dismissed by the appellate court pursuant to Sec. 2, Rule 50 of the Rules of Court, which provides:
Sec. 2. Dismissal of improper appeal to the Court of Appeals. – An appeal under Rule 41 taken from the
Regional Trial Court to the Court of Appeals raising only questions of law shall be dismissed, issues purely of
law not being reviewable by the said court. . . .
Nonetheless, in order to put to rest this case involving the execution of the house and lot in the name of Marietta
dela Cruz Sta. Ines, the Court deems it proper to discuss the issue of whether or not herein respondents,
husband and children of the owner of the levied property, may validly seek the annulment of the sale of said
property.15
It is a basic principle of law that money judgments are enforceable only against property unquestionably
belonging to the judgment debtor, and any third person adversely affected by the mistaken levy of his property
to answer for another man’s debt may validly assail such levy through the remedies provided for by Rule 39 of
the Rules of Court. Under said rule, a third person may avail himself of the remedies of (1) terceria16 to
determine whether the sheriff has rightly or wrongly taken hold of the property not belonging to the judgment
debtor or obligor; and (2) independent "separate action" to vindicate their claim of ownership and/or possession
over the foreclosed property.17 If a "separate action" is the recourse, the third-party claimant must institute in a
forum of competent jurisdiction an action, distinct and separate from the action in which the judgment is being
enforced, even before or without need of filing a claim in the court that issued the writ. 18
In the case at bar, herein respondents are strangers to the action where the writ of execution was issued. As
pointed out by the Nueva Vizcaya RTC in its original Order denying the motion to dismiss, the husband and
children of Marietta were not parties to the Pasig RTC case and are third-party claimants who became such
only after trial in the previous case had been terminated and the judgment therein had become final and
executory. Neither are they indispensable nor necessary parties in the Pasig RTC case, and they could not,
therefore, intervene in said case. As strangers to the original case, respondents cannot be compelled to present
their claim with the Pasig RTC which issued the writ of execution.19 In choosing to institute a "separate action"
before a competent court in the province where the levied property is located (Nueva Vizcaya RTC),
respondents correctly exercised a remedy provided for in the Rules of Court in order that they may vindicate
their alleged claim to the levied house and lot. It was, therefore, erroneous for the trial court to dismiss the
complaint based on lack of jurisdiction.
Nevertheless, respondents’ complaint for annulment of sale of the levied property must still be dismissed. In
their petition before Nueva Vizcaya RTC, herein respondents aver that the property is exempt from execution
under Section 12, Rule 39 of the 1988 Rules on Civil Procedure as said property is the judgment debtor’s duly
constituted family home under the Family Code. According to respondents, the house and lot was constituted
jointly by Hinahon and Marietta as their family home from the time they occupied the same as a family
residence in 1972 and that under Section 153 of the Family Code, there is no longer any need to constitute the
said property as family home, whether judicially or extrajudicially, because it became such by operation of law.
Furthermore, respondents assert that the money judgment against Marietta was rendered by the trial court in
January 1989 long after the constitution of the said family home.
Such contentions are erroneous. Under Article 155 of the Family Code, the family home shall be exempt from
execution, forced sale, or attachment except for, among other things, debts incurred prior to the constitution of
the family home. In the case at bar, the house and lot of respondents was not constituted as a family home,
whether judicially or extrajudicially, at the time Marietta incurred her debts. Under prevailing jurisprudence, it is
deemed constituted as such only upon the effectivity of the Family Code on 03 August 1988, thus, the debts
were incurred before the constitution of the family home. As stated in the case of Modequillo v. Breva20:
. . . Under Article 162 of the Family Code, it is provided that "the provisions of this Chapter shall also govern
existing family residences insofar as said provisions are applicable." It does not mean that Articles 152 and 153
of said Code have a retroactive effect such that all existing family residences are deemed to have been
constituted as family homes at the time of their occupation prior to the effectivity of the Family Code and are
exempt from execution for the payment of obligations incurred before the effectivity of the Family Code. Article
162 simply means that all existing family residences at the time of the effectivity of the Family Code, are
considered family homes and are prospectively entitled to the benefits accorded to a family home under the
Family Code. Article 162 does not state that the provisions of Chapter 2, Title V have a retroactive effect.
Neither is it correct to say that the obligation sought to be satisfied by the levy of the property was incurred only
upon the issuance of the judgment in the original case in January of 1989. As stated by herein petitioners, the
complaint against Marietta was instituted on 17 June 1986 to seek redress for damages suffered by them due to
acts and omissions committed by Marietta as early as 1977 when she assumed management and supervision
of their deceased mother’s rice land. This means to say that Marietta’s liability, which was the basis of the
judgment, arose long before the levied property was constituted as a family home by operation of law in August
1988. Under the circumstances, it is clear that the liability incurred by Marietta falls squarely under one of the
instances when a family home may be the subject of execution, forced sale, or attachment, as provided for by
Article 155 of the Family Code, particularly, to answer for debts incurred prior to the constitution of the family
home.

WHEREFORE, premises considered, the petition is hereby GRANTED. The Decision of the Court of Appeals is
REVERSED and SET ASIDE. Special Civil Action No. 5853 entitled, "Roel Sta. Ines, et al. v. Mary Josephine
Gomez, et al.," filed before the Regional Trial Court of Bayombong, Nueva Vizcaya, is hereby DISMISSED. No
Costs.

SO ORDERED.
G.R. No. 97898 August 11, 1997
FLORANTE F. MANACOP, petitioner,
vs.
COURT OF APPEALS and E & L MERCANTILE, INC., respondents.
PANGANIBAN, J.:
May a writ of execution of a final and executory judgment issued before the effectivity of the Family Code be
executed on a house and lot constituted as a family home under the provision of said Code?
State of the Case
This is the principal question posed by petitioner in assailing the Decision of Respondent Court of
Appeals1 in CA-G.R. SP No. 18906 promulgated on February 21, 1990 and its Resolution
promulgated on March 21, 1991, affirming the orders issued by the trial court commanding the
issuance of various writs of execution to enforce the latter's decision in Civil Case No. 53271.
The Facts
Petitioner Florante F. Manacop2 and his wife Eulaceli purchased on March 10, 1972 a 446-square-
meter residential lot with a bungalow, in consideration of P75,000.00. 3 The property, located in
Commonwealth Village, Commonwealth Avenue, Quezon City, is covered by Transfer Certificate of
Title No. 174180.
On March 17, 1986, Private Respondent E & L Merchantile, Inc. filed a complaint against petitioner
and F.F. Manacop Construction Co., Inc. before the Regional Trial Court of Pasig, Metro Manila to
collect an indebtedness of P3,359,218.45. Instead of filing an answer, petitioner and his company
entered into a compromise agreement with private respondent, the salient portion of which provides:
c. That defendants will undertake to pay the amount of P2,000,000.00 as and when their
means permit, but expeditiously as possible as their collectibles will be collected. (sic)
On April 20, 1986, the trial court rendered judgment approving the aforementioned compromise
agreement. It enjoined the parties to comply with the agreement in good faith. On July 15, 1986,
private respondent filed a motion for execution which the lower court granted on September 23, 1986.
However, execution of the judgment was delayed. Eventually, the sheriff levied on several vehicles
and other personal properties of petitioner. In partial satisfaction of the judgment debt, these chattels
were sold at public auction for which certificates of sale were correspondingly issued by the sheriff.
On August 1, 1989, petitioner and his company filed a motion to quash the alias writs of execution and
to stop the sheriff from continuing to enforce them on the ground that the judgment was not yet
executory. They alleged that the compromise agreement had not yet matured as there was no
showing that they had the means to pay the indebtedness or that their receivables had in fact been
collected. They buttressed their motion with supplements and other pleadings.
On August 11, 1989, private respondent opposed the motion on the following grounds: (a) it was too
late to question the September 23, 1986 Order considering that more than two years had elapsed; (b)
the second alias writ of execution had been partially implemented; and (c) petitioner and his company
were in bad faith in refusing to pay their indebtedness notwithstanding that from February 1984 to
January 5, 1989, they had collected the total amount of P41,664,895.56. On September 21, 1989,
private respondent filed an opposition to petitioner and his company's addendum to the motion to
quash the writ of execution. It alleged that the property covered by TCT No. 174180 could not be
considered a family home on the grounds that petitioner was already living abroad and that the
property, having been acquired in 1972, should have been judicially constituted as a family home to
exempt it from execution.
On September 26, 1989, the lower court denied the motion to quash the writ of execution and the
prayers in the subsequent pleadings filed by petitioner and his company. Finding that petitioner and
his company had not paid their indebtedness even though they collected receivables amounting to
P57,224,319.75, the lower court held that the case had become final and executory. It also ruled that
petitioner's residence was not exempt from execution as it was not duly constituted as a family home,
pursuant to the Civil Code.
Hence, petitioner and his company filed with the Court of Appeals a petition for certiorari assailing the
lower court's Orders of September 23, 1986 and September 26, 1989. On February 21, 1990,
Respondent Court of Appeals rendered its now questioned Decision dismissing the petition
for certiorari. The appellate court quoted with approval the findings of the lower court that: (a) the
judgment based on the compromise agreement had become final and executory, stressing that
petitioner and his company had collected the total amount of P57,224,319.75 but still failed to pay their
indebtedness and (b) there was no showing that petitioner's residence had been duly constituted as a
family home to exempt it from execution. On the second finding, the Court of Appeals added that:
. . . . We agree with the respondent judge that there is no showing in evidence that petitioner
Mañacop's residence under TCT 174180 has been duly constituted as a family home in
accordance with law. For one thing, it is the clear implication of Article 153 that the family
home continues to be so deemed constituted so long as any of its beneficiaries enumerated
in Article 154 actually resides therein. Conversely, it ceases to continue as such family home
if none of its beneficiaries actually occupies it. There is no showing in evidence that any of its
beneficiaries is actually residing therein. On the other hand, the unrefuted assertion of
private respondent is that petitioner Florante Mañacop had already left the country and is
now, together with all the members of his family, living in West Covina, Los Angeles,
California, U.S.A.
Petitioner and his company filed a motion for reconsideration of this Decision on the ground that the
property covered by TCT No. 174180 was exempt from execution. On March 21, 1991, the Court of
Appeals rendered the challenged Resolution denying the motion. It anchored its ruling on Modequillo
v. Breva,4 which held that "all existing family residences at the time of the effectivity of the Family
Code are considered family homes and are prospectively entitled to the benefits accorded to a family
home under the Family Code."
Applying the foregoing pronouncements to this case, the Court of Appeals explained:
The record of the present case shows that petitioners incurred the debt of P3,468,000.00
from private respondent corporation on February 18, 1982 (Annex "A", Petition). The
judgment based upon the compromise agreement was rendered by the court on April 18,
1986 (Annex "C", ibid). Paraphrasing the aforecited Modequillo case, both the debt and the
judgment preceded the effectivity of the Family Code on August 3, 1988. Verily, the case at
bar does not fall under the exemptions from execution provided under Article 155 of the
Family Code.
Undeterred, petitioner filed the instant petition for review on certiorari arguing that the Court of Appeals
misapplied Modequillo. He contends that there was no need for him to constitute his house and lot as
a family home for it to be treated as such since he was and still is a resident of the same property from
the time "it was levied upon and up to this moment."
The Issue
As stated in the opening sentence of this Decision, the issue in this case boils down to whether a final
and executory decision promulgated and a writ of execution issued before the effectivity of the Family
Code can be executed on a family home constituted under the provisions of the said Code.
 The Court's Ruling
We answer the question in the affirmative. The Court of Appeals committed no reversible error. On the
contrary, its Decision and Resolution are supported by law and applicable jurisprudence.
No Novel Issue
At the outset, the Court notes that the issue submitted for resolution in the instant case is not entirely
new. In Manacop v. Court of Appeals,5 petitioner himself as a party therein raised a similar question of
whether this very same property was exempt from preliminary attachment for the same excuse that it
was his family home. In said case, F.F. Cruz & Co., Inc. filed a complaint for a sum of money. As an
incident in the proceedings before it, the trial court issued writ of attachment on the said house and lot.
In upholding the trial court (and the Court of Appeals) in that case, we ruled that petitioner incurred the
indebtedness in 1987 or prior to the effectively of the Family Code on August 3, 1988. Hence,
petitioner's family home was not exempt from attachment "by sheer force of exclusion embodied in
paragraph 2, Article 155 of the Family Code cited in Modequillo," where the Court categorically ruled:
Under the Family Code, a family home is deemed constituted on a house and lot from the
time it is occupied as a family residence. There is no need to constitute the same judicially or
extrajudicially as required in the Civil Code. If the family actually resides in the premises, it is,
therefore, a family home as contemplated by law. Thus, the creditors should take the
necessary precautions to protect their interest before extending credit to the spouses or
head of the family who owns the home.
Article 155 of the Family Code also provides as follows:
Art. 155. The family home shall be exempt from execution, forced sale or attachment except:
(1) For nonpayment of taxes;
(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by mortgages on the premises before or after such constitution; and
(4) For debts due to laborer, mechanics, architects, builders, materialmen and others who
have rendered service or furnished material for the construction of the building.
The exemption provided as aforestated is effective from the time of the constitution of the
family home as such, and lasts so long as any of its beneficiaries actually resides therein.
In the present case, the residential house and lot of petitioner was not constituted as a family
home whether judicially or extrajudicially under the Civil Code. It became a family home by
operation of law only under Article 153 of the Family Code. It is deemed constituted as a
family home upon the effectivity of the Family Code on August 3, 1988 not August 4, one
year after its publication in the Manila Chronicle on August 4, 1987 (1988 being a leap year).
The contention of petitioner that it should be considered a family home from the time it was
occupied by petitioner and his family in 1960 is not well-taken. Under Article 162 of the
Family Code, it is provided that "the provisions of this Chapter shall also govern existing
family residences insofar as said provisions are applicable." It does not mean that Articles
152 and 153 of said Code have a retroactive effect such that all existing family residences
are deemed to have been constituted as family homes at the time of their occupation prior to
the effectivity of the Family Code and are exempt from execution for the payment of
obligations incurred before the effectivity of the Family Code. Article 162 simply means that
all existing family residences at the time of the effectivity of the Family Code, are considered
family homes and are prospectively entitled to the benefits accorded to a family home under
the Family Code, Article 162 does not state that provisions of Chapter 2, Title V have a
retroactive effect.
Is the family home of petitioner exempt from execution of the money judgment aforecited?
No. The debt or liability which was the basis of the judgment arose or was incurred at the
time of the vehicular accident on March 16, 1976 and the money judgment arising therefrom
was rendered by the appellate court on January 29, 1988. Both preceded the effectivity of
the Family Code on August 3, 1988. This case does not fall under the exemptions from
execution provided in the Family Code.6 (Emphasis supplied.)
Article 153 of the Family Code
Has No Retroactive Effect
Petitioner contends that the trial court erred in holding that his residence was not exempt from
execution in view of his failure to show that the property involved "has been duly constituted as a
family home in accordance with law." He asserts that the Family Code and Modequillo require simply
the occupancy of the property by the petitioner, without need for its judicial or extrajudicial constitution
as a family home.7
Petitioner is only partly correct. True, under the Family Code which took effect on August 3, 1988, 8 the
subject property became his family home under the simplified process embodied in Article 153 of said
code. However, Modequillo explicitly ruled that said provision of the Family Code does not have
retroactive effect. In other words, prior to August 3, 1988, the procedure mandated by the Civil
Code9 had to be followed for a family home to be constituted as such. There being absolutely no proof
that the subject property was judicially or extrajudicially constituted as a family home, it follows that the
law's protective mantle cannot be availed of by petitioner. Since the debt involved herein was incurred
and the assailed orders of the trial court issued prior to August 3, 1988, the petitioner cannot be
shielded by the benevolent provisions of the Family Code.
List of Beneficiary-Occupants Restricted
to Those Enumerated in the Code
In view of the foregoing discussion, there is no reason to address the other arguments of petitioner
other than to correct his misconception of the law. Petitioner contends that he should be deemed
residing in the family home because his stay in the United States is merely temporary. He asserts that
the person staying in the house is his overseer and that whenever his wife visited this country, she
stayed in the family home. This contention lacks merit.
The law explicitly provides that occupancy of the family home either by the owner thereof or by "any of
its beneficiaries" must be actual. That which is "actual" is something real, or actually existing, as
opposed to something merely possible, or to something which is presumptive or constructive. 10 Actual
occupancy, however, need not be by the owner of the house specifically. Rather, the property may be
occupied by the "beneficiaries" enumerated by Article 154 of the Family Code.
Art. 154. The beneficiaries of a family home are:
(1) The husband and wife, or an unmarried person who is the head of the family; and
(2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship
be legitimate or illegitimate, who are living in the family home and who depend upon the
head of the family for lead support.
This enumeration may include the in-laws where the family home is constituted jointly by the husband
and wife. 11 But the law definitely excludes maids and overseers. They are not the beneficiaries
contemplated by the Code. Consequently, occupancy of a family home by an overseer like
Carmencita V. Abat in this case 12 is insufficient compliance with the law.
WHEREFORE, the petition is hereby DENIED for utter lack of merit. This Decision is immediately
executory. Double costs against petitioner.

SO ORDERED.
G.R. No. 108532 March 9, 1999
PABLITO TANEO, JR., JOSE TANEO, NENA T. CATUBIG and HUSBAND, CILIA T. MORING and
HUSBAND, petitioners, vs. COURT OF APPEALS and ABDON GILIG, respondents.
KAPUNAN, J.:
The issues in this case are not novel: whether or not the conveyance made by way of the sheriff's sale pursuant
to the writ of execution issued by the trial court in Civil Case No. 590 is prohibited under Sec. 118 of
Commonwealth Act No. 141; and whether or not the family home is exempt from execution.
As a result of a judgment in Civil Case No. 590 (for recovery of property) in favor of private respondent, two (2)
of petitioners' properties were levied to satisfy the judgment amount of about P5,000.00: one was a parcel of
land located in Barrio Igpit, Municipality of Opol, Misamis Oriental with an area of about five (5) hectares, and
the other was the family home also located at Igpit, Opol, Misamis Oriental. The subject properties were sold at
public auction on February 12, 1966 to the private respondent as the highest bidder. Consequently, after
petitioners' failure to redeem the same, a final deed of conveyance was executed on February 9, 1968,
definitely selling, transferring, and conveying said properties to the private respondent.
To forestall such conveyance, petitioners filed an action on November 5, 1985 (docketed as Civil Case No.
10407) to declare the deed of conveyance void and to quiet title over the land with a prayer for a writ of
preliminary injunction. In their complaint, it was alleged that petitioners are the children and heirs of Pablo
Taneo and Narcisa Valaceras who died on February 12, 1977 and September 12, 1984, respectively. Upon
their death, they left the subject property covered by OCT No. P-12820 and Free Patent No. 548906.
Considering that said property has been acquired through free patent, such property is therefore inalienable and
not subject to any encumbrance for the payment of debt, pursuant to Commonwealth Act No. 141. Petitioners
further alleged that they were in continuous, open and peaceful possession of the land and that on February 9,
1968. Deputy Provincial Sheriff Jose V. Yasay issued a Sheriffs Deed of Conveyance in favor of the private
respondent over the subject property including their family home which was extrajudicially constituted in
accordance with law. As a result of the alleged illegal deed of conveyance, private respondent was able to
obtain in his name Tax Declaration No. 851920 over the land, thus casting a cloud of doubt over the title and
ownership of petitioners over said property.
Private respondent refuted petitioners' contentions alleging that he lawfully acquired the subject properties
described as Lot No. 5545, Cad. 237 which was a private land, by virtue of a Sheriffs Sale on February 12,
1996. Said sale has become final as no redemption was made within one year from the registration of the
Sheriffs Certificate of Sale. The validity of the sale in favor of Abdon Gilig was even confirmed by the Court of
Appeals in a related case (CA No. 499965-R) entitled "Arriola v. Gilig," where one Rufino Arriola also claimed
ownership over the subject property.
Private respondent averred that the subject land was originally owned by Lazaro Ba-a who sold the land to
Pablo Taneo on September 18, 1941, as evidenced by an Escritura de Venta. Despite it being a private land,
Pablo Taneo filed an application for free patent which was final only in 1979.
As counterclaim, private respondent alleged that since petitioners are still in possession of the subject property,
he has been deprived of acts of ownership and possession and therefore, prayed for payment of rentals from
February, 1968 until possession has been restored to them.
In its decision of March 27, 1989, the RTC dismissed the complaint.
The dispositive portion thereof reads as follows:
Premises considered, Judgment is hereby rendered in favor of the defendant and against the plaintiffs,
ordering the dismissal of the complaint filed by the plaintiffs;
a) Declaring OCT No. P-12820 and Free Patent No 548906 both in the name of Pablo Taneo as null
and void and directing the Register of Deeds to cancel the same, without prejudice however on the
part of the defendant to institute legal proceedings for the transfer of the said title in the name of
defendant Abdon Gilig;
b) Declaring Abdon Gilig as the absolute and legal owner of the land covered by OCT No. P-12820,
and covered by Tax Declaration No. 851920, and hence entitled to the possession of the same and as
a necessary concomitant, admonishing the plaintiffs to refrain from disturbing the peaceful possession
of the defendant over the land in question.
c) Likewise declaring the defendant Abdon Gilig as the true and absolute owner of the house in
question formerly declared under Tax Declaration No. 4142 in the name of Pablo Taneo and presently
declared under Tax Declaration No 851916 in the name of Abdon Gilig; ordering the plaintiffs or any of
their representatives to vacate and return the possession of the same to defendant Abdon Gilig;
d) Ordering the plaintiffs, except the nominal parties herein, to pay to defendant Abdon Gilig the
amount of P500.00 a month as reasonable rental of the house in question to be reckoned from
February 9, 1968 until the possession of the same is returned to the defendant.
e) To pay to defendant the amount of P5,000.00 as attorney's fees and to pay the costs.
SO ORDERED. 1
On appeal, the Court of Appeals affirmed in toto the decision of the RTC.
Hence, this petition.
The petition is devoid of merit.
In resolving the issues, the lower court made the following findings of fact which this Court finds no cogent
reason to disturb:
1. That the land in question originally belonged to Lazaro Ba-a who sold the same to the late Pablito
(sic) Taneo father of the herein plaintiff on September 18, 1941, by virtue of an Escritura de Venta
identified as Reg. Not. 50; pages 53, Foleo Not. V, Series of 1941 of the Notarial Register of Ernie
Pelaez (Exh. 10);
2. That on July 19, 1951 Abdon Gilig with his wife filed a Civil Case No. 590 for recovery of property
against Pablo Taneo, et al., wherein Judgment was rendered on June 24, 1964, in favor of Abdon
Gilig and against Pablo Taneo ordering the latter to pay damages in the amount of P5,000.00 (Exh. 2);
3. That by virtue of said decision, a writ of Execution was issued on November 22, 1965 against the
properties of Pablo Taneo and on December 1, 1965, a Notice of Levy was executed by the Clerk of
Court Pedro Perez wherein the properties in question were among the properties levied by the Sheriff
(Exh 3);
4. That the said properties were sold at public auction wherein the defendant Abdon Gilig came out as
the highest bidder and on February 12, 1965, a Sheriffs Certificate of Sale was executed by Ex-
Oficio Provincial Sheriff Pedro Perez (Exh. 1) ceding the said properties in favor of Abdon Gilig and
which Certificate of Sale was registered with the Register of Deeds on March 2, 1966;
5. That for failure to redeem the said property within the reglementary period, a Sheriffs final Deed of
Conveyance was executed by same Provincial Sheriff Jose V. Yasay on February 1968, (Exhs. 4, 4-A)
conveying the property definitely to Abdon Gilig.
6. That on April 20, 1966, after his third-party claim which he filed with the Sheriff in Civil Case No. 590
was not given due course, Rufino Arriola filed Civil Case No. 2667 entitled Arriola vs. Abdon
Gilig, et al., for Recovery of Property and/or annulment of Sale with Damages;
7. That Judgment was rendered by the Court thru Judge Bernardo Teves dismissing the case with
costs on February 21, 1969;
8. That said decision was appealed to the Court of Appeals which affirmed the decision in toto on June
20, 979, declaring the alleged Deed of Sale executed by Abdon Gilig in favor of the plaintiff as null and
void for being simulated or fictitious and executed in fraud or (sic) creditors;
 9. That on March 7, 1964, Pablo Taneo constituted the house in question erected on the land of
Plutarco Vacalares as a family home (Exh. F) but was however, notarized only on May 2, 1965 and
registered with the Register of Deeds on June 24, 1966.
10. That in the meanwhile, unknown to the defendant, Pablo Taneo applied for a free patent on the
land in question which was approved on October 13, 1973, (Exh. B) and the Patent and Title issued
on December 10, 1980 (Oct No. P-12820 - Exh. 12);
2
11. On November 3, 1985, the plaintiff filed the present action.
Petitioners contend that under Section 118 of Commonwealth Act No. 141, the subject land which they inherited
from their father under free patent cannot be alienated or encumbered in violation of the law. Citing in particular
the cases of Oliveros v. Porciongcola 3 and Gonzaga v. Court of Appeals, 4 the execution or auction sale of the
litigated land falls within the prohibited period and is. likewise, a disavowal of the rationale of the law which is to
give the homesteader or patentee every chance to preserve for himself and his family the land which the State
had gratuitously given to him as a reward for his labor in cleaning and cultivating it. 5
We are not unmindful of the intent of the law. In fact, in Republic v. Court of Appeals, 6 the Court elucidated, to
wit:
It is well-known that the homestead laws were designed to distribute disposable agricultural lots of the
State to land-destitute citizens for their home and cultivation. Pursuant to such benevolent intention
the State prohibits the sale or encumbrance of the homestead (Section 116) within five years after the
grant of the patent. After that five-year period the law impliedly permits alienation of the favor
homestead; but in line with the primordial purpose to favor the homesteader and his family the statute
provides that such alienation or conveyance (Section 117) shall be subject to the right of repurchase
by the homesteader, his widow of heirs within five years. This Section 117 is undoubtedly a
complement of Section 116. It aims to preserve and keep in the family of the homesteader that portion
of public land which the State had gratuitously given to him. It would, therefore, be in keeping with this
fundamental idea to hold, as we hold, that the right to repurchase exists not only when the original
homesteader makes the conveyance, but also when it is made by his widow or heirs. This construction
is clearly deducible from the terms of the statute.
The intent of the law is undisputable but under the facts of the case, the prohibition invoked by the petitioners
under Section 118 does not apply to them.
Sec. 118 of Commonwealth Act No. 141 reads:
Except in favor of the Government or any of its branches, units or institution, or legally constituted
banking corporations, lands acquired under free patent or homestead provisions shall not be subject to
encumbrance or alienation from the date of the approval of the application and for a term of five years
from and after the date of issuance of the patent or grant, nor shall they become liable to the
satisfaction of any debt contracted prior to the expiration of said period, but the improvements or crops
on the land may be mortgaged or pledged to qualified persons, associations, or corporations.
xxx xxx xxx
The prohibition against alienation of lands acquired by homestead or free patent commences on the date of the
approval of the application for free patent and the five-year period is counted from the issuance of the patent.
The reckoning point is actually the date of approval of the application. In Amper v. Presiding Judge, 7 the Court
held that:
. . . The date when the prohibition against the alienation of lands acquired by homesteads or free
patents commences is "the date of the approval of the application" and the prohibition embraces the
entire five-year period "from and after the date of issuance of the patent or, grant." As stated in Beniga
v. Bugas, (35 SCRA 111), the provision would make no sense if the prohibition starting "from the date
of the approval of the application" would have no termination date.
The specific period of five years within which the alienation or encumbrance of a homestead is
restricted starts to be computed from the date of the issuance of the patent. But the prohibition of
alienation commences from the date the application is approved which comes earlier. (Emphasis
ours.)
Following this ruling, we agree with the respondent court that the conveyance made by way of the sheriff's sale
was not violative of the law. The judgment obligation of the petitioners against Abdon Gilig arose on June 24,
1964. The properties were levied and sold at public auction with Abdon Gilig as the highest bidder on February
12, 1966. On February 9, 1968, the final deed of conveyance ceding the subject property to Abdon Gilig was
issued after the petitioners failed to redeem the property after the reglementary period. Pablo Taneo`s
application for free parent was approved only on October 19, 1973.
The sequence of the events leads us to the inescapable conclusion that even before the application for
homestead had been approved, Pablo Taneo was no longer the owner of the land. The deed of conveyance
issued on February 9, 1968 finally transferred the property to Abdon Gilig. As of that date, Pablo Taneo did not
actually have transferred to herein petitioners. The petitioners are not the owners of the land and cannot claim
to be such by invoking Commonwealth Act No. 141. The prohibition does not apply since it is clear from the
records that the judgment debt and the execution sale took place prior to the approval of the application for free
patent. We quote with favor the respondent court's valid observation on the matter:
. . . the application of Pablo Taneo for a free patent was approved only on 19 October 1973 and Free
Patent was issued on 10 December 1980. Under the aforecited provision, the subject land could not be
made liable for the satisfaction of any debt contracted from the time of the application and during the 5-year
period following 10 December 1980, or until 10 December 1985. However, debts contracted prior to the
approval of the application for free patent, that is prior to 18 October 1973, are not covered by the
prohibition. This is because they do not fall within the scope of the prohibited period. In this case, the
judgment debt in favor of defendant-appellee was rendered on 24 June 1964, the writ of execution issued
on 22 November 1965, notice of levy made on 1 December 1965, the execution sale held on 12 February
1966, and the certificate of sale registered on 2 March 1966, all before Pablo Taneo's application for free
patent was approved on 19 October 1973. The execution, therefore, was not violative of the law. 8
Anent the second issue, petitioners aver that the house which their father constituted as family home is exempt
from execution. In a last ditch effort to save their property, petitioners invoke the benefits accorded to the family
home under the Family Code.
A family home is the dwelling place of a person and his family. It is said, however, that the family home is a real
right, which is gratuitous, inalienable and free from attachment, constituted over the dwelling place and the land
on which it is situated, which confers upon a particular family the right to enjoy such properties, which must
remain with the person constituting it and his heirs. 9 It cannot be seized by creditors except in certain specials
cases.
Under the Civil Code (Articles 224 to 251), a family home may be constituted judicial and extrajudicially, the
former by the filing of the petition and with the approval of the proper court, and the latter by the recording of a
public instrument in the proper registry of property declaring the establishment of the family home. The
operative act then which created the family home extrajudicially was the registration in the Registry of Property
of the declaration prescribed by Articles 240 and 241 of the Civil Code. 10
Under the Family Code, however. registration was no longer necessary Article 153 of the Family Code provides
that the family home is deemed constituted on a house and lot from the time it is occupied in the family. It reads:
The family home is deemed constituted on a house and lot from the time it is occupied as family
residence. From the time of its constitution and so long as its beneficiaries actually resides therein, the
family home continues to be such and is exempt from execution, forced sale or attachment, except as
hereinafter provided and to the extent of the value allowed by law.
It is under the foregoing provision which petitioners seek refuge to avert execution of the family home arguing
that as early as 1964, Pablo Taneo had already constituted the house in question as their family home.
However, the retroactive effect of the Family Code, particularly on the provisions on the family home has been
clearly laid down by the court as explained in the case of Manacop v. Court of Appeals 11 to wit:
 Finally, the petitioner insists that the attached property is a family home, having been occupied by him
and his family since 1972, and is therefore exempt from attachment.
The contention is not well-taken.
While Article 153 of the Family Code provides that the family home is deemed constituted on a house
and lot from the time it is occupied as a family residence, it does not mean that said article has a
retroactive effect such that all existing family residences, petitioner's included, are deemed to have
been constituted as family homes at the time of their occupation prior to the effectivity of the Family
Code and henceforth, are exempt from execution for the payment of obligations incurred before the
effectivity of the Family Code on August 3, 1988 (Mondequillo vs. Breva, 185 SCRA 766). Neither
does Article 162 of said Code state that the provisions of Chapter 2, Title V thereof have retroactive
effect. It simply means that all existing family residences at the time of the effectivity of the Family
Code are considered family homes and are prospectively entitled to the benefits accorded to a family
home under the Family Code (Modequillo vs. Breva, supra). Since petitioner's debt was incurred as
early as November 25, 1987, it preceded the effectivity of the Family Code. His property is therefore
not exempt from attachment (Annex "O," Plaintiff's Position Paper and Memorandum of Authorities, p.
78)." (pp. 5-6, Decision; pp. 64-65, Rollo) (emphasis ours)
The applicable law, therefore. in the case at bar is still the Civil Code where registration of the declaration of a
family home is a prerequisite. Nonetheless, the law provides certain instances where the family home is not
exempted from execution, forced sale or attachment.
Art. 243 reads:
The family home extrajudicially formed shall be exempt from execution, forced sale or attachment, except:
(1) For nonpayment of taxes;
(2) For debts incurred before the declaration was recorded in the Registry of Property;
(3) For debts secured by mortgages on the premises before or after such record of the declaration;
(4) For debts due to laborers, mechanics, architects, builders, material-men and others who have rendered
service or furnished material for the construction of the building. 12
The trial court found that on March 7, 1964, Pablo Taneo constituted the house in question, erected on the land
of Plutarco Vacalares, as the family home. The instrument constituting the family home was registered only on
January 24, 1966. The money judgment against Pablo Taneo was rendered on January 24, 1964. Thus, at that
time when the "debt" was incurred, the family home was not yet constituted or even registered. Clearly,
petitioners' alleged family home, as constituted by their father is not exempt as it falls under the exception of
Article 243 (2).
Moreover, the constitution of the family home by Pablo Taneo is even doubtful considering that such
constitution did not comply with the requirements of the law. The trial court found that the house was erected
not on the land which the Taneos owned but on the land of one Plutarco Vacalares. By the very definition of the
law that the "family home is the dwelling house where a person and his family resides and the land on which it is
situated," 13 it is understood that the house should be constructed on a land not belonging to another.
Apparently, the constitution of a family home by Pablo Taneo in the instant case was merely an afterthought in
order to escape execution of their property but to no avail.
WHEREFORE, the petition is DENIED for lack of merit. SO ORDERED.
G.R. No. 178288 August 15, 2012
SPOUSES CHARLIE FORTALEZA and OFELIA FORTALEZA, Petitioners,
vs.
SPOUSES RAUL LAPITAN and RONA LAPITAN, Respondents.
DECISION
DEL CASTILLO, J.:
Unless a case falls under recognized exceptions provided by law and jurisprudence, courts should maintain the
ex parte, non-adversarial, summary and ministerial nature of the issuance of a writ of possession.
Assailed in this Petition for Review on Certiorari 1 under Rule 45 of the Rules of Court is the Decision2 of the
Court of Appeals (CA) dated January 10, 2007 in CA-G.R. CV No. 86287 which affirmed the Order3 of the
Regional Trial Court (RTC) of Calamba City Branch 35, dated September 16, 2005 in SLRC Case No. 2528-
2004-C granting an ex parte petition for the issuance of writ of possession. Likewise assailed is the CA
Resolution4 dated June 6, 2007 which denied the Motion for Reconsideration5 of the said assailed Decision.
Factual Antecedents
Spouses Charlie and Ofelia Fortaleza (spouses Fortaleza) obtained a loan from spouses Rolando and Amparo
Lapitan (creditors) in the amount of P1.2 million subject to 34% interest per annum. As security, spouses
Fortaleza executed on January 28, 1998 a Deed of Real Estate Mortgage 6 over their residential house and lot
situated in Barrio Anos, Municipality of Los Baños, Laguna (subject property) registered under Transfer
Certificate of Title (TCT) No. T-412512.7
When spouses Fortaleza failed to pay the indebtedness including the interests and penalties, the creditors
applied for extrajudicial foreclosure of the Real Estate Mortgage before the Office of the Clerk of Court and Ex-
Officio Sheriff of Calamba City. The public auction sale was set on May 9, 2001.
At the sale, the creditors’ son Dr. Raul Lapitan and his wife Rona (spouses Lapitan) emerged as the highest
bidders with the bid amount of P2.5 million. Then, they were issued a Certificate of Sale 8 which was registered
with the Registry of Deeds of Calamba City and annotated at the back of TCT No. T-412512 under Entry No.
615683 on November 15, 2002.9
The one-year redemption period expired without the spouses Fortaleza redeeming the mortgage. Thus,
spouses Lapitan executed an affidavit of consolidation of ownership on November 20, 2003 and caused the
cancellation of TCT No. T-412512 and the registration of the subject property in their names under TCT No. T-
53594510 on February 4, 2004. Despite the foregoing, the spouses Fortaleza refused spouses Lapitan’s formal
demand11 to vacate and surrender possession of the subject property.
Proceedings before the Regional Trial Court
On August 27, 2004, spouses Lapitan filed an ex parte petition for the issuance of writ of possession with
Branch 35 of the RTC of Calamba City docketed as SLRC Case No. 2528-2004-C.12 As new registered owners
of the subject property, spouses Lapitan claimed that they were entitled to its possession pursuant to Section 7
of Act No. 3135,13as amended by Act No. 4118.
In their opposition,14 spouses Fortaleza questioned the validity of the real estate mortgage and the foreclosure
sale. They argued that the mortgage was void because the creditors bloated the principal amount by the
imposition of exorbitant interest. Spouses Fortaleza added that the foreclosure proceeding was invalid for non-
compliance with the posting requirement.
Later, for repeated failure of spouses Fortaleza to appear at the scheduled hearings, the RTC allowed spouses
Lapitan to present evidence ex parte.
Eventually, on September 16, 2005, the RTC ordered the issuance of a writ of possession explaining that it is a
ministerial duty of the court especially since the redemption period had expired and a new title had already been
issued in the name of the spouses Lapitan, thus:
WHEREFORE, premises considered, the Opposition with counterclaim filed by the respondents is denied while
this instant petition is hereby granted.
Accordingly, the Branch Clerk of Court is hereby ordered to issue a Writ of Possession directing the provincial
sheriff of Laguna to place the petitioner in possession of the above described property free from any adverse
occupants thereof.
SO ORDERED.15
Spouses Fortaleza moved for reconsideration, 16 claiming that the subject property is their family home and is
exempt from foreclosure sale. On October 11, 2005, however, the RTC issued an Order 17 denying their motion.
Accordingly, the branch clerk of court issued the Writ of Possession 18 and the sheriff served the corresponding
Notice to Vacate19against spouses Fortaleza.
Proceedings before the Court of Appeals
Dissatisfied, spouses Fortaleza elevated the case to the CA via Rule 41 of the Rules of Court docketed as CA-
G.R. CV No. 86287. With the perfection of an appeal, the RTC held in abeyance the implementation of the
writ.20 After the parties submitted their respective briefs, the CA rendered the assailed Decision21 dated January
10, 2007 dismissing the appeal:
WHEREFORE, the appeal is hereby DISMISSED. The Order dated September 16, 2005 of the Regional Trial
Court, Branch 35, Calamba City in SLRC Case No. 2528-2004-SC, is AFFIRMED. The court a quo is
DIRECTED to enforce the Writ of Possession it issued on October 24, 2005.
SO ORDERED.22
In affirming the ruling of the RTC, the CA stressed that any question regarding the regularity and validity of the
mortgage or its foreclosure cannot be raised as a justification for opposing the issuance of the writ of
possession since the proceedings is ex parte and non-litigious. Moreover, until the foreclosure sale is annulled,
the issuance of the writ of possession is ministerial.
Issues
Unsuccesful with their quest to have the CA reconsider its Decision,23 spouses Fortaleza filed this petition for
review on certiorari24 raising the following errors:
I (a) Assignment of cases to a Justice, whether for completion of records or for study and report, shall be by
WHETHER X X X THE HONORABLE COURT OF APPEALS VIOLATED THE TWO (2)-RAFFLE RULE
PRESCRIBED BY AND LONG ESTABLISHED UNDER THE REVISED INTERNAL RULES OF THE COURT
OF APPEALS WHEN IT IMMEDIATELY RENDERED THE ASSAILED DECISION BARELY AFTER THE
SUBMISSION OF THE PARTIES’ BRIEFS. IN SO DOING, THE HONORABLE COURT OF APPEALS
ENGAGED IN PROCEDURAL SHORTCUTS AND ACTED WITH UNDUE HASTE AND INDECENT SPEED,
THUS RENDERING ITS DECISION AS NULL AND VOID AND CHARACTERIZED BY MANIFEST BIAS AND
PARTIALITY TO THE RESPONDENTS.
II
WHETHER X X X THE HONORABLE COURT OF APPEALS COMMITTED A SERIOUS REVERSIBLE
ERROR IN UPHOLDING THE TRIAL COURT’S ISSUANCE OF A WRIT OF POSSESSION DESPITE THE
FACT THAT THE RESPONDENTS FAILED TO ESTABLISH THEIR ENTITLEMENT TO THE ISSUANCE OF
SAID WRIT, THE NON-COMPLIANCE BY THE ORIGINAL MORTGAGORS AND THE RESPONDENTS OF
THE STATUTORY REQUIREMENTS OF EXTRAJUDICIAL FORECLOSURE OF MORTGAGE UNDER ACT
NO. 3135, AND THE FATAL DEFECTS OF THE FORECLOSURE PROCEEDINGS.
III
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT HOLDING THAT THE PETITIONERS
WERE PREVENTED BY THE RESPONDENTS FROM EXERCISING THEIR RIGHT OF REDEMPTION OVER
THE FORECLOSED PROPERTY BY DEMANDING A REDEMPTION PRICE OF A HIGHLY INEQUITABLE
AND MORE THAN DOUBLE THE AMOUNT OF THE FORECLOSED PROPERTY, ESPECIALLY THAT THE
FORECLOSED MORTGAGED PROPERTY IS THE FAMILY HOME OF PETITIONERS AND THEIR
CHILDREN.25
First, spouses Fortaleza point out that the CA violated its own 2002 Internal Rules of Procedure when it decided
the case without passing the two-raffle system. They claim that the justice assigned in the completion stage also
decided the case on the merits. This procedural shortcut, according to spouses Fortaleza, evinces the appellate
court’s bias and prejudgment in favor of the spouses Lapitan.
Second, citing Barican v. Intermediate Appellate Court26 and Cometa v. Intermediate Appellate Court,27 and
reiterating the irregularities that allegedly attended the foreclosure sale, the spouses Fortaleza insist that the
issuance of writ of possession is not always ministerial and the trial court should have accorded them
opportunity to present contrary evidence.
Last, spouses Fortaleza maintain that the subject property is a family home exempt from forced sale. Hence, in
the spirit of equity and following the rulings in Tolentino v. Court of Appeals, 28 and De los Reyes v. Intermediate
Appellate Court,29 the Court should allow them to exercise the right of redemption even after the expiration of
the one-year period.
Our Ruling
On Matters of Procedure
True, under the 2002 Internal Rules of the Court of Appeals (IRCA), appealed civil cases undergo two-raffle
system. First, a preliminary raffle is held to determine the Justice to whom the case will be assigned for
completion of records. After completion, a second raffle is conducted to determine the Justice to whom the case
will be assigned for study and report. "Each stage is distinct and it may happen that the Justice to whom the
case was initially raffled for completion may not be the same Justice who will write the decision thereon." 30
Thus:
Section 2. Raffle of Cases. –
raffle, subject to the following rules:
(1) Appealed cases for completion of records shall be raffled to individual Justices; (Sec. 5(a), Rule 3,
RIRCA [a])
(1.1) Records are deemed completed upon filing of the required briefs or memoranda or the
expiration of the period for the filing thereof and resolution of all pending incidents.
Thereupon, the Division Clerk of Court shall report the case to the Justice concerned for the
issuance of a resolution declaring the case submitted for decision and referring the same to
the Raffle Committee for raffle to a Justice for study and report; (Sec. 5(b), Rule 3, RIRCA
[a]).31 (Emphasis supplied.)
However, the two-raffle system is already abandoned under the 2009 IRCA. As the rule now stands, the Justice
to whom a case is raffled shall act on it both at the completion stage and for the decision on the merits, thus:
SEC. 2. Raffle of Cases. –
(a) Cases shall be assigned to a Justice by raffle for completion of records, study and report, subject to the
following rules:
(1) Cases, whether original or appealed, shall be raffled to individual justices;
 (1.1) Records are deemed completed upon filing of the required pleadings, briefs or
memoranda or the expiration of the period for the filing thereof and resolution of all pending
incidents. Upon such completion, the Division Clerk of Court shall report the case to the
Justice concerned for the issuance of a resolution declaring the case submitted for
decision.32 (Emphasis supplied.)
Corollarily, the alleged defect in the processing of this case before the CA has been effectively cured. We stress
that rules of procedure may be modified at any time and become effective at once, so long as the change does
not affect vested rights.33 Moreover, it is equally axiomatic that there are no vested rights to rules of
procedure.34 Thus, unless spouses Fortaleza can establish a right by virtue of some statute or law, the alleged
violation is not an actionable wrong.35 At any rate, the 2002 IRCA does not provide for the effect of non-
compliance with the two-raffle system on the validity of the decision. Notably too, it does not prohibit the
assignment by raffle of a case for study and report to a Justice who handled the same during its completion
stage.
We also find that personal bias and prejudgment cannot be inferred from the alleged breach of internal rules. It
is settled that clear and convincing evidence is required to prove bias and prejudice. 36 Bare allegations and
mere suspicions of partiality are not enough in the absence of evidence to overcome the presumption that a
member of the court will undertake his noble role to dispense justice according to law and evidence and without
fear or favor.37Moreover, no acts or conduct of the division or the ponente was shown to indicate any
arbitrariness against the spouses Fortaleza. What is extant is that the opinions formed in the course of judicial
proceedings are all based on the evidence presented.
On the Issuance of Writ of Possession
Spouses Fortaleza claim that the RTC grievously erred in ignoring the apparent nullity of the mortgage and the
subsequent foreclosure sale. For them, the RTC should have heard and considered these matters in deciding
the case on its merits. They relied on the cases of Barican38 and Cometa39 in taking exception to the ministerial
duty of the trial court to grant a writ of possession.
But the cited authorities are not on all fours with this case. In Barican, we held that the obligation of a court to
issue a writ of possession ceases to be ministerial if there is a third party holding the property adversely to the
judgment debtor. Where such third party exists, the trial court should conduct a hearing to determine the nature
of his adverse possession. And in Cometa, there was a pending action where the validity of the levy and sale of
the properties in question were directly put in issue which this Court found pre-emptive of resolution. For if the
applicant for a writ of possession acquired no interest in the property by virtue of the levy and sale, then, he is
not entitled to its possession. Moreover, it is undisputed that the properties subject of said case were sold at an
unusually lower price than their true value. Thus, equitable considerations motivated this Court to withhold the
issuance of the writ of possession to prevent injustice on the other party.
Here, there are no third parties holding the subject property adversely to the judgment debtor. It was spouses
Fortaleza themselves as debtors-mortgagors who are occupying the subject property. They are not even
strangers to the foreclosure proceedings in which the ex parte writ of possession was applied for. Significantly,
spouses Fortaleza did not file any direct action for annulment of the foreclosure sale of the subject property.
Also, the peculiar circumstance of gross inadequacy of the purchase price is absent.
Accordingly, unless a case falls under recognized exceptions provided by law 40 and jurisprudence,41 we maintain
the ex parte, non-adversarial, summary and ministerial nature of the issuance of a writ of possession as outlined
in Section 7 of Act No. 3135, as amended by Act No. 4118, which provides:
SECTION 7. In any sale made under the provisions of this Act, the purchaser may petition the Court of First
Instance of the 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 of an ex parte motion x x x 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. (Emphasis supplied.)
Under the provision cited above, the purchaser in a foreclosure sale may apply for a writ of possession during
the redemption period. Notably, in this case, the one-year period for the spouses Fortaleza to redeem the
mortgaged property had already lapsed. Furthermore, ownership of the subject property had already been
consolidated and a new certificate of title had been issued under the name of the spouses Lapitan. Hence, as
the new registered owners of the subject property, they are even more entitled to its possession and have the
unmistakable right to file an ex parte motion for the issuance of a writ of possession. As aptly explained in
Edralin v. Philippine Veterans Bank,42 the duty of the trial court to grant a writ of possession in such instances is
ministerial, and the court may not exercise discretion or judgment, thus:
Consequently, the purchaser, who has a right to possession after the expiration of the redemption period,
becomes the absolute owner of the property when no redemption is made. x x x The purchaser can demand
possession at any time following the consolidation of ownership in his name and the issuance to him of a new
TCT. After consolidation of title in the purchaser’s name for failure of the mortgagor to redeem the property, the
purchaser’s right to possession ripens into the absolute right of a confirmed owner. At that point, the issuance of
a writ of possession, upon proper application and proof of title becomes merely a ministerial function.
Effectively, the court cannot exercise its discretion. (Emphasis in the original.)
In this case, spouses Lapitan sufficiently established their right to the writ of possession. More specifically, they
presented the following documentary exhibits: (1) the Certificate of Sale and its annotation at the back of
spouses Fortaleza’s TCT No. T-412512; (2) the Affidavit of Consolidation proving that spouses Fortaleza failed
to redeem the property within the one-year redemption period; (3) TCT No. T-535945 issued in their names;
and, (4) the formal demand on spouses Fortaleza to vacate the subject property.
Lastly, we agree with the CA that any question regarding the regularity and validity of the mortgage or its
foreclosure cannot be raised as a justification for opposing the petition for the issuance of the writ of
possession.43 The said issues may be raised and determined only after the issuance of the writ of
possession.44 Indeed, "[t]he judge with whom an application for writ of possession is filed need not look into the
validity of the mortgage or the manner of its foreclosure." 45 The writ issues as a matter of course. "The rationale
for the rule is to allow the purchaser to have possession of the foreclosed property without delay, such
possession being founded on the right of ownership." 46 To underscore this mandate, Section 847 of Act No. 3135
gives the debtor-mortgagor the right to file a petition for the setting aside of the foreclosure sale and for the
cancellation of a writ of possession in the same proceedings where the writ was issued within 30 days after the
purchaser-mortgagee was given possession. The court’s decision thereon may be appealed by either party, but
the order of possession shall continue in effect during the pendency of the appeal.
"Clearly then, until the foreclosure sale of the property in question is annulled by a court of competent
jurisdiction, the issuance of a writ of possession remains the ministerial duty of the trial court. The same is true
with its implementation; otherwise, the writ will be a useless paper judgment – a result inimical to the mandate
of Act No. 3135 to vest possession in the purchaser immediately." 48
On exemption of the subject property
and the exercise of right of redemption
Spouses Fortaleza’s argument that the subject property is exempt from forced sale because it is a family home
deserves scant consideration. As a rule, the family home is exempt from execution, forced sale or
attachment.49However, Article 155(3) of the Family Code explicitly allows the forced sale of a family home "for
debts secured by mortgages on the premises before or after such constitution." In this case, there is no doubt
that spouses Fortaleza voluntarily executed on January 28, 1998 a deed of Real Estate Mortgage over the
subject property which was even notarized by their original counsel of record. And assuming that the property is
exempt from forced sale, spouses Fortaleza did not set up and prove to the Sheriff such exemption from forced
sale before it was sold at the public auction. As elucidated in Honrado v. Court of Appeals:50
While it is true that the family home is constituted on a house and lot from the time it is occupied as a family
residence and is exempt from execution or forced sale under Article 153 of the Family Code, such claim for
exemption should be set up and proved to the Sheriff before the sale of the property at public auction. Failure to
do so would estop the party from later claiming the exemption. As this Court ruled in Gomez v. Gealone:

Although the Rules of Court does not prescribe the period within which to claim the exemption, the rule is,
nevertheless, well-settled that the right of exemption is a personal privilege granted to the judgment debtor and
as such, it must be claimed not by the sheriff, but by the debtor himself at the time of the levy or within a
reasonable period thereafter.51(Emphasis supplied.)

Certainly, reasonable time for purposes of the law on exemption does not mean a time after the expiration of the
one-year period for a judgment debtor to redeem the property.52

Equally without merit is spouses Fortaleza’s reliance on the cases of Tolentino53 and De Los Reyes54 in praying
for the exercise of the right of redemption even after the expiration of the one-year period. In Tolentino, we held
that an action to redeem filed within the period of redemption, with a simultaneous deposit of the redemption
money tendered to the sheriff, is equivalent to an offer to redeem and has the effect of preserving the right to
redemption for future enforcement even beyond the one-year period.55 And in De Los Reyes, we allowed the
mortgagor to redeem the disputed property after finding that the tender of the redemption price to the sheriff
was made within the one-year period and for a sufficient amount.

The circumstances in the present case are far different. The spouses Fortaleza neither filed an action nor made
a formal offer to redeem the subject property accompanied by an actual and simultaneous tender of payment. It
is also undisputed that they allowed the one-year period to lapse from the registration of the certificate of sale
without redeeming the mortgage. For all intents and purposes, spouses Fortaleza have waived or abandoned
their right of redemption.1âwphi1

Although the rule on redemption is liberally interpreted in favor of the original owner of the property, we cannot
apply the privilege of liberality to accommodate the spouses Forteza due to their negligence or omission to
exercise the right of redemption within the prescribed period without justifiable cause.

WHEREFORE, premises considered, the petition is DENIED. The Decision dated January 10, 2007 and
Resolution dated June 6, 2007 of the Court of Appeals in CA-G.R. CV No. 86287 are AFFIRMED.

SO ORDERED.
G.R. No. 185064 January 16, 2012
SPOUSES ARACELI OLIVA-DE MESA and ERNESTO S. DE MESA, Petitioner,
vs.
SPOUSES CLAUDIO D. ACERO, JR. and MA. RUFINA D. ACERO, SHERIFF FELIXBERTO L. SAMONTE
and REGISTRAR ALFREDO SANTOS, Respondents.
DECISION
REYES, J.:
Nature of the Petition
This is a petition for review on certiorari under Rule 45 of the Rules of Court filed by the Spouses Araceli Oliva-
De Mesa (Araceli) and Ernesto S. De Mesa (Ernesto), assailing the Court of Appeals’ (CA) Decision 1 dated
June 6, 2008 and Resolution2 dated October 23, 2008 in CA-G.R. CV No. 79391 entitled "Spouses Araceli
Oliva-De Mesa and Ernesto De Mesa v. Spouses Claudio Acero, Jr., et al."
The Antecedent Facts
This involves a parcel of land situated at No. 3 Forbes Street, Mount Carmel Homes Subdivision, Iba,
Meycauayan, Bulacan, which was formerly covered by Transfer Certificate of Title (TCT) No. T-76.725 (M)
issued by the Register of Deeds of Meycauayan, Bulacan and registered under Araceli’s name. The petitioners
jointly purchased the subject property on April 17, 1984 while they were still merely cohabiting before their
marriage. A house was later constructed on the subject property, which the petitioners thereafter occupied as
their family home after they got married sometime in January 1987.
Sometime in September 1988, Araceli obtained a loan from Claudio D. Acero, Jr. (Claudio) in the amount of
₱100,000.00, which was secured by a mortgage over the subject property. As payment, Araceli issued a check
drawn against China Banking Corporation payable to Claudio.
When the check was presented for payment, it was dishonored as the account from which it was drawn had
already been closed. The petitioners failed to heed Claudio’s subsequent demand for payment.
Thus, on April 26, 1990, Claudio filed with the Prosecutor's Office of Malolos, Bulacan a complaint for violation
of Batas Pambansa Blg. 22 (B.P. 22) against the petitioners. After preliminary investigation, an information for
violation of B.P. 22 was filed against the petitioners with the Regional Trial Court (RTC) of Malolos, Bulacan.
On October 21, 1992, the RTC rendered a Decision3 acquitting the petitioners but ordering them to pay Claudio
the amount of ₱100,000.00 with legal interest from date of demand until fully paid.
On March 15, 1993, a writ of execution was issued and Sheriff Felixberto L. Samonte (Sheriff Samonte) levied
upon the subject property. On March 9, 1994, the subject property was sold on public auction; Claudio was the
highest bidder and the corresponding certificate of sale was issued to him.
Sometime in February 1995, Claudio leased the subject property to the petitioners and a certain Juanito Oliva
(Juanito) for a monthly rent of ₱5,500.00. However, the petitioners and Juanito defaulted in the payment of the
rent and as of October 3, 1998, their total accountabilities to Claudio amounted to ₱170,500.00.
Meanwhile, on March 24, 1995, a Final Deed of Sale4 over the subject property was issued to Claudio and on
April 4, 1995, the Register of Deeds of Meycauayan, Bulacan cancelled TCT No. T-76.725 (M) and issued TCT
No. T-221755 (M)5 in his favor.
Unable to collect the aforementioned rentals due, Claudio and his wife Ma. Rufina Acero (Rufina) (collectively
referred to as Spouses Acero) filed a complaint for ejectment with the Municipal Trial Court (MTC) of
Meycauayan, Bulacan against the petitioners and Juanito. In their defense, the petitioners claimed that Spouses
Acero have no right over the subject property. The petitioners deny that they are mere lessors; on the contrary,
they are the lawful owners of the subject property and, thus cannot be evicted therefrom.
On July 22, 1999, the MTC rendered a Decision, 6 giving due course to Spouses Acero’s complaint and ordering
the petitioners and Juanito to vacate the subject property. Finding merit in Spouses Acero’s claims, the MTC
dismissed the petitioners' claim of ownership over the subject property. According to the MTC, title to the
subject property belongs to Claudio as shown by TCT No. T-221755 (M).
The MTC also stated that from the time a Torrens title over the subject property was issued in Claudio’s name
up to the time the complaint for ejectment was filed, the petitioners never assailed the validity of the levy made
by Sheriff Samonte, the regularity of the public sale that was conducted thereafter and the legitimacy of
Claudio’s Torrens title that was resultantly issued.
The petitioners appealed the MTC’s July 22, 1999 Decision to the RTC. This appeal was, however, dismissed in
a Decision dated November 22, 1999 due to the petitioners’ failure to submit their Memorandum. The petitioners
sought reconsideration of the said decision but the same was denied in an Order dated January 31, 2000.
Consequently, the petitioners filed a petition for review 7 with the CA assailing the RTC’s November 22, 1999
Decision and January 31, 2000 Order. In a December 21, 2006 Decision, 8 the CA denied the petitioner’s petition
for review. This became final on July 25, 2007.9
In the interregnum, on October 29, 1999, the petitioners filed against the respondents a complaint 10 to nullify
TCT No. T-221755 (M) and other documents with damages with the RTC of Malolos, Bulacan. Therein, the
petitioners asserted that the subject property is a family home, which is exempt from execution under the Family
Code and, thus, could not have been validly levied upon for purposes of satisfying the March 15, 1993 writ of
execution.
On September 3, 2002, the RTC rendered a Decision, 11 which dismissed the petitioners’ complaint. Citing
Article 155(3) of the Family Code, the RTC ruled that even assuming that the subject property is a family home,
the exemption from execution does not apply. A mortgage was constituted over the subject property to secure
the loan Araceli obtained from Claudio and it was levied upon as payment therefor.
The petitioners sought reconsideration of the RTC’s September 3, 2002 Decision but this was denied in a
Resolution12 dated January 14, 2003.
On appeal, the CA affirmed the RTC’s disposition in its Decision 13 dated June 6, 2008. The CA ratiocinated that
the exemption of a family home from execution, attachment or forced sale under Article 153 of the Family Code
is not automatic and should accordingly be raised and proved to the Sheriff prior to the execution, forced sale or
attachment. The appellate court noted that at no time did the petitioners raise the supposed exemption of the
subject property from execution on account of the same being a family home.
The petitioners then sought reconsideration of the said June 6, 2008 Decision but the same was denied by the
CA in its Resolution14 dated October 23, 2008.
Aggrieved, the petitioners filed the instant petition for review, praying for the cancellation of TCT No. T-221755
(M). They insist that the execution sale that was conducted is a nullity considering that the subject property is a
family home. The petitioners assert that, contrary to the disposition of the CA, a prior demonstration that the
subject property is a family home is not required before it can be exempted from execution.
In their Comment,15 Spouses Acero claimed that this petition ought to be denied on the ground of forum-
shopping as the issues raised had already been determined by the MTC in its July 22, 1999 Decision on the
complaint for ejectment filed by them, which had already become final and executory following the petitioner’s
failure to appeal the CA’s December 21, 2006 Decision affirming it.
Issues
The threshold issues for resolution are the following: (a) whether the petitioners are guilty of forum-shopping;
and (b) whether the lower courts erred in refusing to cancel Claudio’s Torrens title TCT No. T-221755 (M) over
the subject property.
The Court’s Ruling
First Issue: Forum-Shopping
On the first issue, we find that the petitioners are not guilty of forum-shopping.
There is forum-shopping when as a result of an adverse decision in one forum, or in anticipation thereof, a party
seeks a favorable opinion in another forum through means other than an appeal or certiorari. Forum-shopping
exists when two or more actions involve the same transactions, essential facts, and circumstances; and raise
identical causes of action, subject matter, and issues. 16
Forum-shopping exists where the elements of litis pendentia are present, and where a final judgment in one
case will amount to res judicata in the other. The elements of forum-shopping are: (a) identity of parties, or at
least such parties as would represent the same interest in both actions; (b) identity of rights asserted and relief
prayed for, the relief being founded on the same facts; and (c) identity of the two preceding particulars such that
any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in
the action under consideration.17
There is no identity of issues and reliefs prayed for in the ejectment case and in the action to cancel TCT No. T-
221755 (M). Verily, the primordial issue in the ejectment case is who among the contending parties has a better
right of possession over the subject property while ownership is the core issue in an action to cancel a Torrens
title.
It is true that the petitioners raised the issue of ownership over the subject property in the ejectment case.
However, the resolution thereof is only provisional as the same is solely for the purpose of determining who
among the parties therein has a better right of possession over the subject property.
Accordingly, a judgment rendered in an ejectment case is not a bar to action between the same parties
respecting title to the land or building. Neither shall it be conclusive as to the facts therein. This issue is far from
being novel and there is no reason to depart from this Court’s previous pronouncements. In Malabanan v. Rural
Bank of Cabuyao, Inc.,18 this Court had previously clarified that a decision in an ejectment case is not res
judicata in an annulment of title case and vice-versa given the provisional and inconclusive nature of the
determination of the issue of ownership in the former.
Forum-shopping exists where the elements of litis pendentia are present, namely: (a) identity of parties or at
least such as representing the same interests in both actions; (b) identity of rights asserted and reliefs prayed
for, the relief being founded on the same facts; and (c) the identity in the two cases should be such that the
judgment that may be rendered in one would, regardless of which party is successful, amounts to res judicata in
the other.
Petitioner and respondent are the same parties in the annulment and ejectment cases. The issue of ownership
was likewise being contended, with same set of evidence being presented in both cases. However, it cannot be
inferred that a judgment in the ejectment case would amount to res judicata in the annulment case, and vice-
versa.
This issue is hardly a novel one. It has been laid to rest by heaps of cases iterating the principle that a judgment
rendered in an ejectment case shall not bar an action between the same parties respecting title to the land or
building nor shall it be conclusive as to the facts therein found in a case between the same parties upon a
different cause of action involving possession.
It bears emphasizing that in ejectment suits, the only issue for resolution is the physical or material possession
of the property involved, independent of any claim of ownership by any of the party litigants. However, the issue
of ownership may be provisionally ruled upon for the sole purpose of determining who is entitled to
possession de facto. Therefore, the provisional determination of ownership in the ejectment case cannot be
clothed with finality.
Corollarily, the incidental issue of whether a pending action for annulment would abate an ejectment suit must
be resolved in the negative.
A pending action involving ownership of the same property does not bar the filing or consideration of an
ejectment suit, nor suspend the proceedings. This is so because an ejectment case is simply designed to
summarily restore physical possession of a piece of land or building to one who has been illegally or forcibly
deprived thereof, without prejudice to the settlement of the parties' opposing claims of juridical possession in
appropriate proceedings.19(citations omitted)
Second Issue: Nullification of TCT No. T-221755 (M)
Anent the second issue, this Court finds that the CA did not err in dismissing the petitioners’ complaint for
nullification of TCT No. T-221755 (M).
The subject property is a family home.
The petitioners maintain that the subject property is a family home and, accordingly, the sale thereof on
execution was a nullity. In Ramos v. Pangilinan,20 this Court laid down the rules relative to exemption of family
homes from execution:
For the family home to be exempt from execution, distinction must be made as to what law applies based
on when it was constituted and what requirements must be complied with by the judgment debtor or his
successors claiming such privilege. Hence, two sets of rules are applicable.
If the family home was constructed before the effectivity of the Family Code or before August 3, 1988, then it
must have been constituted either judicially or extra-judicially as provided under Articles 225, 229-231
and 233 of the Civil Code. Judicial constitution of the family home requires the filing of a verified petition before
the courts and the registration of the court’s order with the Registry of Deeds of the area where the property is
located. Meanwhile, extrajudicial constitution is governed by Articles 240 to 242 of the Civil Code and involves
the execution of a public instrument which must also be registered with the Registry of Property. Failure to
comply with either one of these two modes of constitution will bar a judgment debtor from availing of the
privilege.
On the other hand, for family homes constructed after the effectivity of the Family Code on August 3, 1988,
there is no need to constitute extrajudicially or judicially, and the exemption is effective from the time it was
constituted and lasts as long as any of its beneficiaries under Art. 154 actually resides therein. Moreover, the
family home should belong to the absolute community or conjugal partnership, or if exclusively by one spouse,
its constitution must have been with consent of the other, and its value must not exceed certain amounts
depending upon the area where it is located. Further, the debts incurred for which the exemption does not apply
as provided under Art. 155 for which the family home is made answerable must have been incurred after August
3, 1988.21 (citations omitted)
In the earlier case of Kelley, Jr. v. Planters Products, Inc.,22 we stressed that:
Under the Family Code, there is no need to constitute the family home judicially or extrajudicially. All family
homes constructed after the effectivity of the Family Code (August 3, 1988) are constituted as such by operation
of law. All existing family residences as of August 3, 1988 are considered family homes and are
prospectively entitled to the benefits accorded to a family home under the Family Code. 23 (emphasis
supplied and citation omitted)
The foregoing rules on constitution of family homes, for purposes of exemption from execution, could be
summarized as follows:
 First, family residences constructed before the effectivity of the Family Code or before August 3, 1988
must be constituted as a family home either judicially or extrajudicially in accordance with the
provisions of the Civil Code in order to be exempt from execution;
Second, family residences constructed after the effectivity of the Family Code on August 3, 1988 are
automatically deemed to be family homes and thus exempt from execution from the time it was
constituted and lasts as long as any of its beneficiaries actually resides therein;
Third, family residences which were not judicially or extrajudicially constituted as a family home prior
to the effectivity of the Family Code, but were existing thereafter, are considered as family homes by
operation of law and are prospectively entitled to the benefits accorded to a family home under the
Family Code.
Here, the subject property became a family residence sometime in January 1987. There was no showing,
however, that the same was judicially or extrajudicially constituted as a family home in accordance with the
provisions of the Civil Code. Still, when the Family Code took effect on August 3, 1988, the subject property
became a family home by operation of law and was thus prospectively exempt from execution. The petitioners
were thus correct in asserting that the subject property was a family home.
The family home’s exemption from execution must be set up and proved to the Sheriff before the sale of
the property at public auction.
Despite the fact that the subject property is a family home and, thus, should have been exempt from execution,
we nevertheless rule that the CA did not err in dismissing the petitioners’ complaint for nullification of TCT No.
T-221755 (M). We agree with the CA that the petitioners should have asserted the subject property being a
family home and its being exempted from execution at the time it was levied or within a reasonable time
thereafter. As the CA aptly pointed out:
In the light of the facts above summarized, it is evident that appellants did not assert their claim of exemption
within a reasonable time. Certainly, reasonable time, for purposes of the law on exemption, does not mean a
time after the expiration of the one-year period provided for in Section 30 of Rule 39 of the Rules of Court for
judgment debtors to redeem the property sold on execution, otherwise it would render nugatory final bills of sale
on execution and defeat the very purpose of execution – to put an end to litigation. x x x.24
The foregoing disposition is in accord with the Court’s November 25, 2005 Decision in Honrado v. Court of
Appeals,25 where it was categorically stated that at no other time can the status of a residential house as a
family home can be set up and proved and its exemption from execution be claimed but before the sale thereof
at public auction:
While it is true that the family home is constituted on a house and lot from the time it is occupied as a family
residence and is exempt from execution or forced sale under Article 153 of the Family Code, such claim for
exemption should be set up and proved to the Sheriff before the sale of the property at public auction. Failure to
do so would estop the party from later claiming the exemption. As this Court ruled in Gomez v. Gealone:
Although the Rules of Court does not prescribe the period within which to claim the exemption, the rule is,
nevertheless, well-settled that the right of exemption is a personal privilege granted to the judgment debtor and
as such, it must be claimed not by the sheriff, but by the debtor himself at the time of the levy or within a
reasonable period thereafter;
"In the absence of express provision it has variously held that claim (for exemption) must be made at the time of
the levy if the debtor is present, that it must be made within a reasonable time, or promptly, or before the
creditor has taken any step involving further costs, or before advertisement of sale, or at any time before sale,
or within a reasonable time before the sale, or before the sale has commenced, but as to the last there is
contrary authority."
In the light of the facts above summarized, it is self-evident that appellants did not assert their claim of
exemption within a reasonable time. Certainly, reasonable time, for purposes of the law on exemption, does not
mean a time after the expiration of the one-year period provided for in Section 30 of Rule 39 of the Rules of
Court for judgment debtors to redeem the property sold on execution, otherwise it would render nugatory final
bills of sale on execution and defeat the very purpose of execution—to put an end to litigation.1awphil We said
before, and We repeat it now, that litigation must end and terminate sometime and somewhere, and it is
essential to an effective administration of justice that, once a judgment has become final, the winning party be
not, through a mere subterfuge, deprived of the fruits of the verdict. We now rule that claims for exemption from
execution of properties under Section 12 of Rule 39 of the Rules of Court must be presented before its sale on
execution by the sheriff.26 (citations omitted)
Reiterating the foregoing in Spouses Versola v. Court of Appeals,27 this Court stated that:
Under the cited provision, a family home is deemed constituted on a house and lot from the time it is occupied
as a family residence; there is no need to constitute the same judicially or extrajudicially.
The settled rule is that the right to exemption or forced sale under Article 153 of the Family Code is a
personal privilege granted to the judgment debtor and as such, it must be claimed not by the sheriff, but
by the debtor himself before the sale of the property at public auction. It is not sufficient that the person
claiming exemption merely alleges that such property is a family home. This claim for exemption must be set
up and proved to the Sheriff. x x x.28 (emphasis supplied and citations omitted)
Having failed to set up and prove to the sheriff the supposed exemption of the subject property before the sale
thereof at public auction, the petitioners now are barred from raising the same. Failure to do so estop them from
later claiming the said exemption.
Indeed, the family home is a sacred symbol of family love and is the repository of cherished memories that last
during one’s lifetime.29 It is likewise without dispute that the family home, from the time of its constitution and so
long as any of its beneficiaries actually resides therein, is generally exempt from execution, forced sale or
attachment.30
The family home is a real right, which is gratuitous, inalienable and free from attachment. It cannot be seized by
creditors except in certain special cases.31 However, this right can be waived or be barred by laches by the
failure to set up and prove the status of the property as a family home at the time of the levy or a reasonable
time thereafter.
In this case, it is undisputed that the petitioners allowed a considerable time to lapse before claiming that the
subject property is a family home and its exemption from execution and forced sale under the Family Code. The
petitioners allowed the subject property to be levied upon and the public sale to proceed. One (1) year lapsed
from the time the subject property was sold until a Final Deed of Sale was issued to Claudio and, later, Araceli’s
Torrens title was cancelled and a new one issued under Claudio’s name, still, the petitioner remained silent. In
fact, it was only after the respondents filed a complaint for unlawful detainer, or approximately four (4) years
from the time of the auction sale, that the petitioners claimed that the subject property is a family home, thus,
exempt from execution.
For all intents and purposes, the petitioners’ negligence or omission to assert their right within a reasonable time
gives rise to the presumption that they have abandoned, waived or declined to assert it. Since the exemption
under Article 153 of the Family Code is a personal right, it is incumbent upon the petitioners to invoke and prove
the same within the prescribed period and it is not the sheriff’s duty to presume or raise the status of the subject
property as a family home.
The petitioners’ negligence or omission renders their present assertion doubtful; it appears that it is a mere
afterthought and artifice that cannot be countenanced without doing the respondents injustice and depriving the
fruits of the judgment award in their favor. Simple justice and fairness and equitable considerations demand that
Claudio’s title to the property be respected. Equity dictates that the petitioners are made to suffer the
consequences of their unexplained negligence.
WHEREFORE, in consideration of the foregoing disquisitions, the petition is DENIED. The assailed Decision
dated June 6, 2008 of the Court of Appeals in CA-G.R. CV No. 79391, which affirmed the Decision of the
Regional Trial Court of Malolos, Bulacan, Branch 22, in Civil Case No. 1058-M-99 and dismissed the complaint
for declaration of nullity of TCT No. 221755 (M) and other documents, and the October 23, 2008 Resolution
denying reconsideration, are AFFIRMED.

SO ORDERED.