SECOND DIVISION

[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 : p

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 Resolution 2 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 P100,000.00, 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. SICaDA

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 Decision 3 acquitting
the petitioners but ordering them to pay Claudio the amount of
P100,000.00 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
P5,500.00. 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 P170,500.00.
Meanwhile, on March 24, 1995, a Final Deed of Sale 4 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 SpousesAcero)
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). AcaEDC
 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 Resolution 12 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
Resolution 14dated October 23, 2008. aHSAIT

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 judicatain 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. cCAIES

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. DHcESI

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. InRamos 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: aEDCSI

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: Cdpr

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. . . . . 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. 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:
TcEAIH

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. . . . . 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. DcSTaC
 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.
(Spouses Oliva-De Mesa v. Spouses Acero, Jr., G.R. No. 185064,
|||

[January 16, 2012], 679 PHIL 43-61)

FIRST DIVISION

[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 : p

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 Decision 2 of the Court of Appeals (CA) dated
January 10, 2007 in CA-G.R. CV No. 86287 which affirmed the Order 3 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 Resolution 4 dated June 6, 2007 which denied the Motion for
Reconsideration 5 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-535945 10 on February
4, 2004. Despite the foregoing, the spouses Fortaleza refused spouses
Lapitan's formal demand 11 to vacate and surrender possession of the
subject property.TAIESD

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, 13 as
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
Vacate 19 against spouses Fortaleza. aHcACT

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 Decision 21 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
Unsuccessful with their quest to have the CA reconsider its
Decision, 23 spouses Fortaleza filed this petition for review
on certiorari 24raising the following errors:
I
WHETHER . . . 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. aDICET

II
WHETHER . . . 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
Court 26 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: IDSaAH

Section 2. Raffle of Cases. —

(a) Assignment of cases to a Justice, whether for completion of
records or for study and report, shall be by 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. EICScD

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. 37 Moreover, 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 Cometa 39 in taking exception to the ministerial duty of
the trial court to grant a writ of possession.
DEScaT

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
partewrit 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 . . . 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.) acEHCD

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. . . . 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 8 47 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 DAcaIE

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. 49 However, Article 155 (3) of the Family
Codeexplicitly 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
inHonrado 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 Tolentino 53 and De Los Reyes 54 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. cHCIDE

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. 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 Fortaleza 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.
(Spouses Fortaleza v. Spouses Lapitan, G.R. No. 178288, [August 15,
|||

2012], 692 PHIL 596-617)

FIRST DIVISION

[G.R. No. 186322. July 8, 2015.]

ENRICO S. EULOGIO and NATIVIDAD V.

EULOGIO, petitioners, vs. PATERNO C. BELL, SR.,
ROGELIA CALINGASAN-BELL, PATERNO WILLIAM
BELL, JR., FLORENCE FELICIA VICTORIA BELL,
PATERNO FERDINAND BELL III, and PATERNO
BENERAÑO BELL IV, respondents.

DECISION

SERENO, C.J : p

This is a Petition for Review on Certiorari assailing the Court of

Appeals (CA) Decision 1 in CA-G.R. SP No. 87531 which granted the
Petition for Certiorari filed by respondents and enjoined the execution
sale of their family home for the satisfaction of the money judgment
awarded to petitioners in Civil Case No. 4581, and the
Resolution 2 which denied petitioners' Motion for Reconsideration. HTcADC

ANTECEDENT FACTS
Respondents Paterno William Bell, Jr., Florence Felicia Victoria
Bell, Paterno Ferdinand Bell III, and Paterno Beneraño IV (the Bell
siblings) are the unmarried children of respondent Spouses Paterno C.
Bell and Rogelia Calingasan-Bell (Spouses Bell). In 1995, the Bell
siblings lodged a Complaint for annulment of documents,
reconveyance, quieting of title and damages against petitioners
Enrico S. Eulogio and Natividad Eulogio (the Eulogios). It was
docketed as Civil Case No. 4581 at the Regional Trial Court (RTC) of
Batangas City, Branch 84. The Complaint sought the annulment of the
contract of sale executed by Spouses Bell over their
329-square-meter residential house and lot, as well as the
cancellation of the title obtained by petitioners by virtue of the Deed.
The RTC granted respondents' prayers, but declared Spouses
Bell liable to petitioners in the amount of P1 million plus 12% interest
per annum. The dispositive portion of the Decision dated 15 July 1998
reads as follows:
WHEREFORE, prescinding from all the foregoing, the
Court hereby declares:
1. That the sale of the subject house and lot under
Deed of Sale marked as Exhibit "F" is only an equitable
mortgage in favor of the defendants Enrico Eulogio and
Natividad Eulogio. However, the mortgage cannot bind the
property in question for being violative of Chapter 2, Title 4 of
the Family Code, its encumbrance not having been consented
to in writing by a majority of the beneficiaries who are the
plaintiffs herein;
2. The said equitable mortgage is deemed to be an
unsecured mortgage [sic] for which the Spouses Paterno C.
Bell, Sr. and Rogelia Calingasan Bell as mortgagors are liable
to the defendants-spouses Enrico Eulogio and Natividad
Eulogio in the amount of P1,000,000 plus interest of 12% per
annum. However, under the Fourth Party Complaint Sps.
Paterno C. Bell, Sr. and Rogelia Calingasan Bell have the
right of reimbursement from fourth party defendants Nicolas
Moraña and Julieta Moraña for whom their loan of P1,000,000
was secured by Sps. Paterno C. Bell, Sr. and Rogelia
Calingasan Bell. Accordingly, the fourth party defendants
Nicolas Moraña and Julieta Moraña are hereby ordered to
reimburse Paterno C. Bell, Sr. and Rogelia Calingasan Bell
the loan of P1,000,000 plus interest of 12% per annum to be
paid by the latter to defendants Enrico and Natividad Eulogio;
3. The house and lot in question is free from any and all
encumbrances by virtue of said equitable mortgage or the
purported sale; and
 4. The Deed of Sale (Exhibit "F") is null and void for
being contrary to law and public policy.
Accordingly, (1) the Register of Deeds of Batangas City
is hereby ordered to cancel Transfer Certificate of Title No.
T-131472 in the name of defendants Enrico S. Eulogio and
Natividad Eulogio and to reconstitute (sic) Transfer Certificate
of Title No. RT-680-(5997) as "family home" of the plaintiffs
Florence Felicia Victoria C. Bell, Paterno William C. Bell Jr.,
Paterno Ferdinand C. Bell III, Paterno Beneraño C. Bell IV
and fourth party plaintiffs Paterno C. Bell Sr. and Rogelia
Calingasan Bell; or in the alternative to issue a new Transfer
Certificate of Title under the same tenor;
2. The City Assessor of Batangas City is hereby
directed to issue a tax declaration covering the said subject
property as family home for the said plaintiffs and fourth party
plaintiffs Paterno C. Bell and Rogelia Calingasan Bell; and aScITE

3. Defendants Enrico Eulogio and Natividad Eulogio

are ordered to pay the plaintiffs attorney's fees and litigation
expenses of P35,000.00, as the plaintiffs have been
compelled to litigate to protect their property rights, and
costs. 3
Both petitioners and respondents appealed to the CA, but the
trial court's Decision was affirmed en toto. Spouses Bell later brought
the case to this Court to question their liability to petitioners in the
amount of P1 million plus interest. The Court, however, dismissed
their Petition for failure to show any reversible error committed by the
CA. 4 Thereafter, entry of judgment was made. 5
On 9 June 2004 the RTC issued a Writ of Execution, as a result
of which respondents' property covered by the newly reconstituted
Transfer Certificate of Title (TCT) No. 54208 [formerly RT-680 (5997)]
was levied on execution. Upon motion by respondents, the trial court,
on 31 August 2004, ordered the lifting of the writ of execution on the
ground that the property was a family home. 6
Petitioners filed a Motion for Reconsideration of the lifting of the
writ of execution. Invoking Article 160 of the Family Code, they posited
that the current market value of the property exceeded the statutory
limit of P300,000 considering that it was located in a commercial area,
and that Spouses Bell had even sold it to them for P1 million. 7
The RTC, on 13 October 2004, set the case for hearing to
determine the present value of the family home of respondents. It also
appointed a Board of Appraisers to conduct a study on the prevailing
market value of their house and lot. 8
 Respondents sought reconsideration of the above directives
and asked the RTC to cite petitioners for contempt because of
forum-shopping. 9 They argued that petitioners' bid to determine the
present value of the subject property was just a ploy to re-litigate an
issue that had long been settled with finality.
The RTC, however, denied the Motion for Reconsideration 10 of
respondents and directed the commissioners to canvass prospective
buyers of their house and lot. 11
On 23 November 2004, respondents filed a Petition
for Certiorari and Injunction before the CA, 12 where it was docketed
as CA-G.R. SP No. 87531.
Subsequently, the RTC issued on 25 November 2004 an
Order 13 dispensing with the valuation report of the commissioners
and directing the issuance of a writ of execution. Consequently,
respondents filed before the CA a Supplemental Petition with an
urgent prayer for a temporary restraining order. 14
The CA eventually enjoined 15 the execution sale set on 22
December 2004 16 by the RTC.
On 31 July 2008, the CA rendered its Decision granting
respondents' Petition for Certiorari, but it rejected their theory that res
judicatahad already set in.
The appellate court ruled that the RTC Decision, which had
become final and executory, only declared respondents' house and lot
as a family home. Since the issue of whether it may be sold in
execution was incidental to the execution of the aforesaid Decision,
there was as yet no res judicata. DETACa

Still, the CA found that the trial court committed grave abuse of
discretion in ordering the execution sale of the subject family home
after finding that its present value exceeded the statutory limit. The
basis for the valuation of a family home under Article 160, according to
the appellate court, is its actual value at the time of its constitution and
not the market/present value; therefore, the trial court's order was
contrary to law. 17
On 09 February 2009, 18 the CA denied petitioners' Motion for
Reconsideration. Hence, this Petition.
ISSUES
The issues to be resolved are: (1) whether petitioners are guilty
of forum-shopping; (2) whether a hearing to determine the value of
respondents' family home for purposes of execution under Article 160
of the Family Code is barred under the principle of res judicata; and (3)
whether respondents' family home may be sold on execution under
Article 160 of the Family Code.
THE COURT'S RULING
The Court denies the Petition for lack of merit.
Petitioners are not guilty of forum-
shopping.
Forum shopping can be committed in three ways: (1) by filing
multiple cases based on the same cause of action and with the same
prayer, the previous case not having been resolved yet (where the
ground for dismissal is litis pendentia); (2) by filing multiple cases
based on the same cause of action and with the same prayer, the
previous case having been finally resolved (where the ground for
dismissal is res judicata); and (3) by filing multiple cases based on the
same cause of action but with different prayers, or by splitting of
causes of action (where the ground for dismissal is also either litis
pendentia or res judicata). 19
The essence of forum shopping is the filing of multiple suits
involving the same parties for the same cause of action, either
simultaneously or successively, for the purpose of obtaining a
favorable judgment through means other than by appeal
or certiorari. 20Forum shopping does not apply to cases that arise
from an initiatory or original action that has been elevated by way of
appeal or certiorarito higher or appellate courts or authorities. This is
so because the issues in the appellate courts necessarily differ from
those in the lower court, and the appealed cases are but a
continuation of the original case and treated as only one case. 21
Respondents contend that the Decision in Civil Case No. 4581,
which declared that property in dispute was a family home, had long
attained finality. Accordingly, respondents maintain that petitioners'
bid to re-litigate the present value of the property in the course of the
execution proceedings is barred by res judicata, and that petitioners
should be cited for contempt of court because of forum-shopping. 22
Recall that although the trial court had nullified the Deed of Sale
over respondents' family home in Civil Case No. 4581 for lack of a
written consent from its beneficiaries as required under Article 158 of
the Family Code, 23 the court still recognized the validity of the
transaction as an unsecured loan. Hence, it declared Spouses Bell
liable to petitioners in the amount of P1 million plus 12% interest per
annum.
 Petitioners' bid to satisfy the above judgment cannot be
considered an act of forum shopping. Simply, the execution of a
decision is just the fruit and end of a suit and is very aptly called the life
of the law. 24 It is not separate from the main case. Similarly, the filing
of the instant Petition as a continuation of the execution proceedings
does not constitute forum shopping. Seeking a reversal of an adverse
judgment or order by appeal or certiorari does not constitute forum
shopping. Such remedies are sanctioned and provided for by the
rules.25
Indeed, as will be presently discussed, the causes of action in
the main proceedings in Civil Case No. 4581 and the consequent
execution proceedings are identical. Suffice it to say, however, that
the danger of a multiplicity of suits upon one and the same cause of
action, which the judicial policy against forum shopping seeks to
prevent, does not exist in this case.
Re-litigating the issue of the value of
respondents' family home is barred
by res judicata.
Res judicata (meaning, a "matter adjudged") is a fundamental
principle of law that precludes parties from re-litigating issues actually
litigated and determined by a prior and final judgment. 26 Under
the 1997 Rules of Court, there are two aspects of res judicata, namely:
bar by prior judgment 27 and conclusiveness of judgment. 28
There is "bar by prior judgment" when, as between the first case
in which the judgment has been rendered and the second case that is
sought to be barred, there is an identity of parties, subject matter, and
causes of action. In this instance, the judgment in the first case
constitutes an absolute bar to the second action. The judgment or
decree on the merits of the court of competent jurisdiction concludes
the litigation between the parties, as well as their privies, and
constitutes a bar to a new action or suit involving the same cause of
action before the same or any other tribunal. 29
On the other hand, there is "conclusiveness of judgment" where
there is an identity of parties in the first and second cases, but no
identity of causes of action. Under this rule, the first judgment is
conclusive only as to those matters actually and directly controverted
and determined and not as to matters merely involved therein. Stated
differently, any right, fact, or matter in issue directly adjudicated or
necessarily involved in the determination of an action before a
competent court in which judgment is rendered on the merits is
conclusively settled by the judgment therein and cannot again be
litigated between the parties and their privies whether or not the claim,
demand, purpose, or subject matter of the two actions is the same. 30
In this case, the trial court's final decision in Civil Case No. 4581
bars petitioners' move to have the property in dispute levied on
execution.
There is no question that the main proceedings in Civil Case No.
4581 and the subsequent execution proceedings involved the same
parties 31 and subject matter. 32 For these reasons, respondents
argue that the execution sale of the property in dispute under Article
160 of the Family Code is barred by res judicata, since the trial court
has already determined that the value of the property fell within the
statutory limit.
The CA held that the trial court's Decision, which is indisputably
final, only settled the issue of whether the property in dispute was a
family home. The CA ruled thus:
We rule that there is no res judicata.
At the outset, let it be emphasized that the decision of
the trial court dated July 15, 1998, which has become final and
executory, only declares the subject property as a family
home. As a matter of fact, private respondents never
questioned that such property is a family home, and
consequently, the issue as to whether or not the property is
family home is settled and res judicata lies only with respect to
this issue.aDSIHc

But the issue as to whether or not a family home could

be the subject of an execution sale was not resolved by the
trial court. This issue[was] raised only when the writ of
execution was issued and hence, [was not] resolved with
finality. Thus, the issue before this Court is whether or not the
[f]amily [h]ome of petitioners under the facts and
circumstances of the case could be the subject of a writ of
execution and sold at public auction. 33
The Court disagrees with the CA.
"Cause of action" is the act or omission by which a party
violates the right of another. 34 It may be argued that the cause of
action in the main proceedings was the sale of the property in dispute,
while in the execution proceedings it was the indebtedness of
Spouses Bell to petitioners.
The settled rule, however, is that identity of causes of action
does not mean absolute identity. Otherwise, a party could easily
escape the operation of res judicata by changing the form of the
action or the relief sought. 35 The test to determine whether the
causes of action are identical is to ascertain whether the same
evidence will sustain both actions, or whether there is an identity of
the facts essential to the maintenance of the two actions. If the
same facts or evidence would sustain both, the two actions are
considered the same, and a judgment in the first case would be a bar
to the subsequent action. Hence, a party cannot, by varying the form
of action or adopting a different method of presenting the case,
escape the operation of the principle that one and the same cause of
action shall not be twice litigated between the same parties or their
privies. 36
Among several tests resorted to in ascertaining whether two
suits relate to a single or common cause of action are: (1) whether the
same evidence would support and sustain both the first and the
second causes of action; and (2) whether the defenses in one case
may be used to substantiate the complaint in the other. Also
fundamental is the test for determining whether the cause of action in
the second case existed at the time of the filing of the first
complaint. 37
Applying the above guidelines, the Court finds that the entirety
of Civil Case No. 4581 — including the bid of petitioners to execute the
money judgment awarded to them by the trial court — is founded on a
common cause of action. Records show that the sole evidence
submitted by petitioners during the execution proceedings was the
Deed of Sale, which the trial court had nullified in the main
proceedings. Concomitantly, the very same defense raised by
petitioners in the main proceedings, i.e., that they had bought the
property from Spouses Bell for P1 million — was utilized to
substantiate the claim that the current value of respondents' family
home was actually P1 million. In fact, the trial court's order for
respondents' family home to be levied on execution was solely based
on the price stated in the nullified Deed of Sale.
Res judicata applies, considering that the parties are litigating
over the same property. Moreover, the same contentions and
evidence advanced by the petitioners to substantiate their claim over
respondents' family home have already been used to support their
arguments in the main proceedings.
Any lingering doubt on the application of res judicata to this
case should be put to rest by the trial court's discussion of the nature
and alienability of the property in dispute, to wit:
 The second issue is about the allegation of the plaintiffs
that the family home which has been constituted on the house
and lot in question is exempt from alienation and that its value
does not exceed P300,000. Paterno Bell, Sr. testified that the
two-storey house was built in 1947 and was made of wood
and hollow blocks. He inherited it in 1976 from his parents and
has been living there with his family. In 1976, when an
extra-judicial settlement was made of the estate of his parents,
the fair market value of the house was P70,000.
City Assessor Rodezinda Pargas testified and
presented Tax Declaration and others, (Exhibit "J", Tax
Declaration No. 005-047) beginning 1985 showing that the
subject lot with an area of 329 sq. m. had a fair market value of
P76,000.00 and the residential house located thereon of
P50,000.00, for a total value of P126,000.00. She testified
that during the prior years the assessed values were lower.
This shows that the limit of the value of P300,000.00 under
Article 157, Title 5 of the Family Code has not been
exceeded. The testimonies of the plaintiffs who are children of
Sps. Paterno Bell, Sr. and Rogelia Calingasan Bell show that
they had lived in that house together with their said parents.
The Court therefore concludes that the said house is a family
home under Chapter 2, Title 5 of the Family Code. Its
alienation by the said Spouses without the written consent of
the majority of the children/plaintiffs is null and void for being
contrary to law and public policy as enunciated in Art. 158 of
the Family Code. 38 [Underscoring supplied]
The foregoing points plainly show that the issue of whether the
property in dispute exceeded the statutory limit of P300,000 has
already been determined with finality by the trial court. Its finding
necessarily meant that the property is exempt from execution.
Assuming for the sake of argument that causes of action in the main
proceedings and in the execution proceedings are different, the
parties are still barred from litigating the issue of whether respondents'
family home may be sold on execution sale under the principle of
conclusiveness of judgment.
Respondents' family home cannot be
sold on execution under Article 160
of the Family Code.
Unquestionably, the family home is exempt from execution as
expressly provided for in Article 153 of the Family Code. 39
It has been said that the family home is a real right that is
gratuitous, inalienable and free from attachment. 40 The great
controlling purpose and policy of the Constitution is the protection or
the preservation of the homestead — the dwelling place. A houseless,
homeless population is a burden upon the energy, industry, and
morals of the community to which it belongs. No greater calamity, not
tainted with crime, can befall a family than to be expelled from the roof
under which it has been gathered and sheltered. 41 The family home
cannot be seized by creditors except in special cases. 42
The nature and character of the property that debtors may claim
to be exempt, however, are determined by the exemption statute. The
exemption is limited to the particular kind of property or the specific
articles prescribed by the statute; the exemption cannot exceed the
statutory limit. 43
Articles 155 and 160 of the Family Code specify the exceptions
mentioned in Article 153, to wit:
ARTICLE 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 laborers, mechanics, architects,
builders, materialmen and others who have rendered service
or furnished material for the construction of the building.
ARTICLE 160. When a creditor whose claims 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 allowed 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 ruleand
procedure shall apply.
At the execution sale, no bid below the value allowed
for a family home shall be considered. The proceeds shall be
applied first to the amount mentioned in Article 157, and then
 to the liabilities under the judgment and the costs. The excess,
if any, shall be delivered to the judgment debtor.
Related to the foregoing is Article 157 of the Family Code,
which provides:
ARTICLE 157. The actual value of the family home
shall not exceed, at the time of its constitution, the amount of
three hundred thousand pesos in urban areas, and two
hundred thousand pesos in rural areas, or such amounts as
may hereafter be fixed by law. ETHIDa

In any event, if the value of the currency changes after

the adoption of this Code, the value most favorable for
the constitution of a family home shall be the basis of
evaluation.
For purposes of this Article, urban areas are deemed to
include chartered cities and municipalities whose annual
income at least equals that legally required for chartered cities.
All others are deemed to be rural areas. [Underscoring
supplied]
The minutes of the deliberation by the drafters of Family
Code on Article 160 are enlightening, to wit:
Justice Puno inquired if the above Article [160] is still
necessary. In reply, Judge Diy opined that the above Article is
intended to cover a situation where the family home is already
worth P500,000 or P1M. Justice Reyes stated that it is
possible that a family home, originally valued at P300,000,
later appreciated to almost P1M because of improvements
made, like roads and plazas. Justice Caguioa, however,
made a distinction between voluntary and involuntary
improvements in the sense that if the value of the family home
exceeded the maximum amount because of voluntary
improvements by the one establishing the family home, the
Article will apply; but if it is through an involuntary
improvement, like the conversion into a residential area or the
establishment of roads and other facilities, the one
establishing the family home should not be punished by
making his home liable to creditors. He suggested that the
matter be clarified in the provision.
xxx xxx xxx
Prof. Bautista objected to the phrase "is worth" since if
they will specify that the family home is worth more than the
maximum amount at the time it was constituted, they will avoid
the suit because the creditor will be given proper
warning. Justice Puno opined that this is a question of fact.
Justice Caguioa added that, under the second sentence,
there will be a preliminary determination as to whether the
family home exceeds the maximum amount allowed by law.
xxx xxx xxx
Justice Caguioa accordingly modified the last sentence
as follows:
If the excess in actual value over that allowed in
Article 157 is due to subsequent voluntary
improvements by the person or persons
constituting the family home or by the owner or
owners of the property, the same rules and
procedure shall apply.
Prof. Bautista objected to the above provision, because
it will in effect penalize the owner for improving the family
home. On the other hand, Justice Puno opined that the
provision covers only the excess in actual value over that
allowed by law. Judge Diy added that the owner may improve
the family home up to P300,000. Justice Caguioa stated that
without the above provision, one can borrow money, put it all
on improvement of the family home even beyond the
maximum value of a family home and, thereby, exempt it from
levy on the part of the creditor. He added that anyway, if one
voluntarily improves his family home out of his money, nobody
can complain because there are no creditors.
Justice Puno posed the question: What is "due to the
subsequent improvement?" Is it the "excess" or is it the
"increase", or is it the "increase", which constitutes the
"excess"? In reply, Justice Reyes opined that it is the
"increase" which constituted the "excess". Justice Puno,
Justice Reyes and Justice Caguioa modified the last sentence
as follows:
If the increase in actual value exceeds that
maximum allowed in Article 157 and results
from subsequent voluntary improvements
introduced by the person or persons constituting
the family home or by the owner or owners of the
property, the same rule and procedure shall
apply.
Prof. Bautista commented that the
phrase "increase in actual value" does not
include the original value. Justice Puno
suggested that they just say "increased actual
value", which the Committee
approved. 44 [Underscoring supplied]
 To summarize, the exemption of the family home from
execution, forced sale or attachment is limited to P300,000 in urban
areas and P200,000 in rural areas, unless those maximum values are
adjusted by law. If it is shown, though, that those amounts do not
match the present value of the peso because of currency fluctuations,
the amount of exemption shall be based on the value that is most
favorable to the constitution of a family home. Any amount in excess
of those limits can be applied to the payment of any of the obligations
specified in Articles 155 and 160.
Any subsequent improvement or enlargement of the family
home by the persons constituting it, its owners, or any of its
beneficiaries will still be exempt from execution, forced sale or
attachment provided the following conditions obtain: (a) the actual
value of the property at the time of its constitution has been
determined to fall below the statutory limit; and (b) the improvement or
enlargement does not result in an increase in its value exceeding the
statutory limit. 45 Otherwise, the family home can be the subject of a
forced sale, and any amount above the statutory limit is applicable to
the obligations under Articles 155 and 160.
Certainly, the humane considerations for which the law
surrounds the family home with immunities from levy do not include
the intent to enable debtors to thwart the just claims of their
creditors. 46
Petitioners maintain that this case falls under the exceptions to
the exemption of the family home from execution or forced sale. They
claim that the actual value of respondents' family home exceeds the
P300,000 limit in urban areas. This fact is supposedly shown by the
Deed of Sale whereby private respondents agreed to sell the property
for P1 million way back in 1995. Therefore, the RTC only properly
ordered the execution sale of the property under Article 160 to satisfy
the money judgment awarded to them in Civil Case No. 4581. 47
As earlier discussed, it has been judicially determined with
finality that the property in dispute is a family home, and that its value
at the time of its constitution was within the statutory limit. Moreover,
respondents have timely claimed the exemption of the property from
execution. 48 On the other hand, there is no question that the money
judgment awarded to petitioners falls under the ambit of Article 160.
Notwithstanding petitioners' right to enforce the trial court's
money judgment, however, they cannot obtain its satisfaction at the
expense of respondents' rights over their family home. It is axiomatic
that those asserting the protection of an exception from an exemption
 must bring themselves clearly within the terms of the exception and
satisfy any statutory requirement for its enforcement. 49
To warrant the execution sale of respondents' family home
under Article 160, petitioners needed to establish these facts: (1) there
was an increase in its actual value; (2) the increase resulted from
voluntary improvements on the property introduced by the persons
constituting the family home, its owners or any of its beneficiaries; and
(3) the increased actual value exceeded the maximum allowed under
Article 157.
During the execution proceedings, none of those facts was
alleged — much less proven — by petitioners. The sole evidence
presented was the Deed of Sale, but the trial court had already
determined with finality that the contract was null, and that the actual
transaction was an equitable mortgage. Evidently, when petitioners
and Spouses Bell executed the Deed of Sale in 1990, the price stated
therein was not the actual value of the property in dispute.
The Court thus agrees with the CA's conclusion that the trial
court committed grave abuse of discretion in ordering the sale on
execution of the property in dispute under Article 160. The trial court
had already determined with finality that the property was a family
home, and there was no proof that its value had increased beyond the
statutory limit due to voluntary improvements by respondents. Yet, it
ordered the execution sale of the property. There is grave abuse of
discretion when one acts in a capricious, whimsical, arbitrary or
despotic manner in the exercise of one's judgment, as in this case in
which the assailed order is bereft of any factual or legal justification. 50
WHEREFORE, the Petition for Review on Certiorari is
hereby DENIED for lack of merit. Accordingly, the Decision of the
Court of Appeals in CA-G.R. SP No. 87531, enjoining the trial court
from proceeding with the sale of the family home of respondents,
is AFFIRMED. cSEDTC

SO ORDERED.
||| (Eulogio v. Bell, Sr., G.R. No. 186322, [July 8, 2015])