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Attorney not paid.

KHO, petitioner, vs. CAMACHO, SHERIFF OF QUEZON CITY, and HONORABLE OSCAR LEVISTE, Regional Trial Court of Quezon City, Branch 97, respondents. G.R. No. 82789 November 21, 1991 In payment of attorney's fees resolved against him, petitioner Narciso Kho, a businessman, issued in favor of private respondent Atty. Manuel Camacho six (6) postdated Manila Bank checks in the total sum of P57,349.00. One of the checks, in the amount of P10,000.00, was lost by Atty. Camacho who promptly notified petitioner. When the other five (5) checks were negotiated by Camacho with the Philippine Amanah Bank, the same were returned uncleared because Manila Bank had been ordered closed by the Central Bank. Because of petitioner's refusal to replace the Manila Bank checks or pay his obligation, Camacho instituted an action for a sum of money against petitioner before respondent trial court. 1 In his answer, petitioner alleged that he was under no obligation to replace the lost check for P10,000.00, arguing that Camacho should have executed a sworn statement that he lost the check issued to him and furnished both the drawer and the bank with said statement so that the bank could place on the check "under alarmed," instead of merely informing petitioner. Petitioner also refused to issue new checks maintaining that the closure of Manila Bank (in which he had an outstanding deposit of P581,571.84 which was more than enough to cover the cost of the five checks) was beyond his control and therefore he was in no financial position to pay Camacho unless and until his money in that beleaguered bank was released. Contending that petitioner's answer failed to tender a genuine issue, Camacho moved for a judgment on the pleadings which respondent Judge Leviste granted in his order of February 12, 1988. In said order, respondent Judge directed petitioner to pay Camacho P57,349.00 "minus the P10,000.00 pertaining to the lost check, or a total of P47,349.00 with interest at the legal rate of 6% from June 2, 1987, until fully paid, with costs or attorney's fees." 2 On February 25, 1988, petitioner seasonably filed a notice of appeal stating that he was appealing the February 12, 1988 order to the Court of Appeals. Respondent Judge duly approved said notice in his order of February 29, 1988. On the other hand, despite the reduced money judgment, Camacho made no move to contest the award. Instead, he filed a motion/manifestation praying that petitioner's notice of appeal be stricken off the record as a mere scrap of paper. Acting on the aforesaid motion, respondent Judge issued the assailed order of March 29, 1988 setting aside the previously approved notice of appeal and adopting Camacho's view that the proper remedy from a judgment on the pleadings was a petition for certiorari to the Supreme Court. Said order reads: In view of the Motion/Manifestation dated March 1, 1988, which this Court finds with merit, . . ., this Court believing that only questions of law are involved, hence the proper remedy should be a petition for certiorari, there being no question of fact presented by the pleadings and the order in Summary Judgment, the order of this Court approving the notice of appeal is hereby cancelled and a new order is hereby made that said notice of appeal is disapproved. 3 Hence this petition for certiorari. The Court has readily observed two very glaring errors committed by respondent Judge Leviste. First, he listened to Camacho who could not even distinguish between a petition for certiorari and a petition for review on certiorari. Secondly, he pre-empted a prerogative that legally pertains to the Court of Appeals when he disapproved petitioner's notice of appeal "believing that only questions of law are involved."

Thus, following the above pronouncements, what respondent Judge should have done under the circumstances was to sustain his approval of the notice of appeal and leave it to the Court of Appeals to certify the case to the proper tribunal if warranted. Indeed, Judge Leviste had absolutely no authority to disapprove the notice of appeal. Under the present rules, his role is to approve or disapprove the record on appeal (when required) and the appeal bond, but not a notice of appeal. A notice of appeal does not require the approval of the trial court. 5 A perusal of petitioner's answer convinces us that the judgment on the pleadings was proper. In that pleading, petitioner disavowed any obligation to replace the useless checks and gratuitously advanced the reason that the bank where he had deposited his lifetime savings had been closed through no fault of his. In effect, what petitioner was saying was that Camacho should wait until he (petitioner) was in a position to pay. This is not a sufficient controversion of the material allegations in the complaint. Finding no reversible error in the judgment on the pleadings rendered by respondent Judge Leviste, the Court considers the same as the final adjudication on the respective rights of the parties. WHEREFORE, in view of the foregoing, certiorari is hereby DENIED. No costs.

Grandaughter Bucad, tried to annul the sale of the Guanzons. Denied, in bad faith.

BUCAD, petitioner, vs. COURT OF APPEALS, ASILDA GUANZON, WILLIAM GUANZON, and EMILIA GUANZON, respondents. G.R. No. 93783 December 11, 1992 There is no dispute as to the findings of fact made by the Court of Appeals, which We quote, as follows: Plaintiff-appellant Evangeline C. Bucad is the granddaughter of Conrado Bucad. On March 16, 1982, a residential land, with an area of 409 square meters, in Fuente Osmea, Cebu was sold to her by her grandfather. It appears that although the land is covered by the Property Registration Decree (PD No. 1529), the sale was not registered because the owner's duplicate copy of TCT No. 9192 was in possession of Felipe Valencia to whom the land had earlier been mortgaged. On December 22, 1982, Conrado Bucad again sold the land to the defendant-appellees. Asilda Guanzon, married to William Guanzon, and to Emilia Guanzon, whom registered their sale on January 4, 1983 after paying off the mortgage lien of Felipe Valencia. Although plaintiff-appellant made an affidavit of adverse claim, which was annotated on the certificate of title of Conrado Bucad on December 27, 1982, this fact did not prevent the defendant-appellees from registering the sale in their favor and from securing a new title (TCT No. 85965) in their names. It appears that a subsequent suit brought by defendant-appellees against plaintiff-appellant for ejectment was dismissed on the ground that the defendant-appellees did not have prior possession of the land. Although in its decision the Regional Trial Court stated that defendantappellees could not claim ownership of the land because at the time they registered their sales they had notice of the adverse claim of the plaintiff-appellant (Civil Case No. R-26062), the decision of this Court affirming the lower court's judgement, was based solely on the consideration that since defendant-appellees did not have prior possesion of the land, an action for ejectment was not the appropriate remedy (Guanzon vs. Dizon, CA-G.R. SP No. 09914, Sept. 30, 1987). On May 8, 1985 plaintiff-appellant brought this suit for annulment of the sale to the defendantappellees and for the cancellation of their certificate of title. After the filing of defendantappellees' answer and trial, the lower court rendered a decision, holding that the plaintiff-appellant did not have a perfected sale because of plaintiff-appelant's failure to pay Conrado Bucad's indebtedness to Felipe Valencia. Consequently art. 1544 of the Civil Code which provides that if the same thing is sold to different persons ownership shall be transferred to the person who in good faith is first in recording his sale, does not apply. The lower court ordered: Wherefore, premises all considered, this Court hereby orders the dismissal of the instant complaint, and for plaintiff to pay defendants. In dismissing the petitioner's appeal, the appellate court found that the appeal did not comply with Section 16, Rule 46 of the Rules of Court with regard to the contents of an appellant's brief, particularly paragraphs (b) and (d) and thus dismissable under Section 1 (g), Rule 50. Furthermore, the Court of Appeals belied petitioner's contention that the affirmance of the decision in the ejectment case clearly established that the first vendee (petitioner) is the real owner of the lot in question, since the appellate court had upheld the decision on another ground, namely, that respondents did not have prior possession of the land. After her motion for reconsideration was denied, petitioner instituted the instant petition, arguing that the Court of Appeals erred (1) in not appreciating that respondents are not registrants in good faith within the contemplation of Article 1544 of the Civil Code; (2) in ignoring the deed of absolute sale executed by Conrado Bucad in her favor; and (3) in dismissing her appeal on a procedural technicality. We find the petition unmeritorious. I

Petitioner's appeal for her failure to include a statement of facts with page references to the record and assignment of errors in her appellant's brief. Sec. 16 Contents of appellant's brief The appellant's brief shall contain in the order herein indicated the following. (b) An assignment of the errors intended to be urged. Such errors shall be separately, distinctly and concisely stated without repetition, and shall be numbered consecutively; (d) Under the heading "Statement of Facts," a clear and concise statement in narrative form of the facts admitted by both parties and of those in controversy, together with the substance if the proof relating thereto in sufficient detail to make it clearly intelligible, with page references to the record; Non-compliance with paragraphs (b) and (d) of the aforementioned provision subjects the appeal to dismissal under section 1 (g), Rule 50, which provides: Sec. 1. Grounds for dismissal An appeal may be dismissed by the Court of Appeals on its own motion or on that of the appellee, on the following ground: (g) Want of specific assignment of errors in the appellant's brief, or of page references to the record as required in section 16 (d) of Rule 46, The purpose of an assignment of errors is to point out to the appellate court the specific portion of the decision appealed from which the appellant seeks to controvert. 3 This requirement is deemed complied with where the assignment of errors are embodied in the arguments, and the clear discussion of the points in issue have accomplished the task of informing the Court which part of the appealed decision is sought to be reviewed. 4 Petitioner's brief in the Court of Appeals is severely wanting on this matter. It does not appraise the appellate court of the portions of the trial court's decision which she contests, but rather, it quoted at length the decision of the Regional Trial Court in the ejectment case. 5 Consequently, We see no reason for a liberal interpretation of the Rules of Court in petitioner's case. The case at bar is an instance of double sale of real property, in which case, Article 1544 of the Civil Code provides: Well-settled is the rule that the registration of a deed of sale by either the first of second buyer must be made in good faith.6 We see no objection in applying said rule to the annotation of an adverse claim in double sales. In the case at bar, the annotation of petitioner's adverse claim was attended by bad faith since at that time it was made in December 27, 1982, petitioner had known of the previous sale to the respondents. This was established by the testimony of Francisca Bucad, mother of petitioner, who stated that petitioner had learned of the second sale on December 24, 1982.7 (Francisca Bucad is petitioner's duly constituted attorney-in-fact inasmuch as the latter is residing in the United States.) Consequently, the annotation is of no force and effect as against respondents. Moreover, petitioner's actual knowledge of the subsequent sale is equivalent to registration of the sale. 8 Since petitioner failed to prove that respondents knew of the prior sale of the property to her, respondents are considered to have registered their deed in good faith and thus ownership of the disputed property should belong to them. Inferior court in the ejectment case erred in applying Article 1544 and in declaring respondents as in bad faith since petitioner's knowledge of the sale of the subject property to the respondents had caused the automatic registration of the same ahead of the annotation of petitioner's adverse claim, as earlier discussed. WHEREFORE, the instant petition for review on certiorari is hereby DISMISSED. The decision appealed from is hereby AFFIRMED in toto. Costs against petitioner. SO ORDERED

Baclayons won the possession, Bacalsos claimed theyre builders of good faith. Disposition of Judgment LEONCIA, MANUEL, DIOSDADA, ANTONIA, ISIDRO, GERONIMO, CRESENCIO, ALEJANDRO, BONIFACIA, AURELIO, EPIFANIO, POLICARPO, IRENEO, ALL SURNAMED BACLAYON; HRS. of AGRIPINA BACLAYON, rep. by LUCIA BACLAYON; HRS. of MODESTA BACLAYON, rep. by FILING BACLAYON; HRS. OF HIPOLITO BACLAYON, rep. BY MARIO BACLAYON; HRS. OF TOMAS BACLAYON, rep. by CRISTITO BACLAYON; SILVESTRE ABANES; HRS. of LEONICA ABELLARE, rep. by FELIX BACLAYON; CECILIA, HERMINIA, FELIX, CONCORDIA, all surnamed DELA VICTORIA; and THE HON. JUDGE GERMAN LEE, JR., Presiding Judge of Branch XV, RTC, Cebu, petitioners, vs. THE HON. COURT OF APPEALS, HEIRS OF SPOUSES MARCIANO BACALSO AND GREGORIA SABANDEJA, namely, ARCADIA, FRANCISCA, JOSEFA, DIONESIA, VALENTINA, ANGELA, VENANCIO, DOMINGA and FELIMON, all surnamed BACALSO, respondents. G.R. No. 89132 February 26, 1990 MEDIALDEA, J.: The antecedent facts are as follows: Baclayon and Abellare filed with the then CFI-Cebu Branch 2, in Civil Case No. R-11185, a complaint for recovery of ownership and possession, and damages, against spouses Marciano Bacalso and Gregoria Sabandeja of Lot No. 5528 of the Cebu Cadastre. The latter filed their answer thereto on July 15, 1969. On December 20, 1982, the trial court rendered a decision in favor of the Bacalso spouses, declaring them owners of the subject lot, which decision was appealed by the petitioners to the respondent Court of Appeals. The case was docketed as AC-G.R. CV No. 04948. On July 29, 1986, the respondent court rendered a decision reversing the trial court, the dispositive portion of which reads as follows (p. 15, Rollo): WHEREFORE, the decision a quo is hereby reversed and set aside and another one is rendered declaring plaintiffs-appellants as heirs of the late Matias Baclayon the owners of Lot No. 5528 of the Cebu Cadastre covered by Original Certificate of Title No. 2726 (O-NA) of the Registry of Deeds of Cebu (Exh. I) and ordering defendants to vacate the lot and surrender the same to plaintiffs. No costs. SO ORDERED. The private respondents then elevated the case to this Court by filing a petition for review which was, however, denied in the Resolution dated May 27, 1987. The decision in favor of the petitioners having become final and executory, they filed a motion for execution of judgment and possession which was opposed by the private respondents. The opposition was based on the pronouncement of the respondent court in its decision dated July 29, 1986, to wit (p. 16, Rollo): No fraud or bad faith could be imputed on the part of the Bacalso spouses. They believed the lot they bought from Segundo Baclayon was the land they occupied. The private respondents argued that since they were found by the respondent court as builders and/or planters in good faith and Article 546 of the Civil Code ordains that the necessary and useful expenses for the improvements must be paid to the builders/planters in good faith with right of retention, a reception of evidence to determine the correct value of the necessary and useful improvements must be done first before ordering the execution. The RTC-Branch 15, Cebu City, presided by Judge German G. Lee, Jr., in its order, dated March 8, 1988, granted the motion for execution of judgment and possession, to wit (p. 16, Rollo): The private respondents appealed the said order of March 8, 1988 by filing a notice of appeal dated March 30, 1988 which appeal was, however, dismissed by Judge Lee in the order dated April 15, 1988. On April 29, 1988, the petitioners filed a motion for writ of possession and demolition to which motion the private respondents filed their opposition reiterating the ground in the opposition to the motion for execution and possession.

Judge Lee, thereafter, issued the order dated August 19, 1988, to wit (p. 17, Rollo): On September 19, 1988, the private respondents filed a petition for certiorari, mandamus and prohibition with the respondent court concerning the orders dated March 8, 1988 and August 19, 1988. On April 28, 1989, the respondent court granted the petition, the dispositive portion of which reads as follows (p. 21, Rollo): WHEREFORE, the orders of March 8,1988 and August 19, 1988 issued in Civil Case No. R-11185 by the RTC-Cebu City, Branch 15, are hereby SET ASIDE and ANNULLED. In a hearing supplementary to execution, the said court is hereby ordered to receive petitioners' evidence to prove that they are builders in good faith of the improvements and the value of the said improvements introduced by them in the subject Lot 5528. IT IS SO ORDERED. The motion for reconsideration was denied. Hence, the present petition. The only issue is whether or not the private respondents should be allowed, in a hearing supplementary to execution, to present evidence to prove that they are builders in good faith of the improvements and the value of said improvements. The rule is well established that once a decision has become final and executory the only jurisdiction left with the trial court is to order its execution. To require now the trial court in a hearing supplementary to execution, to receive private respondents' evidence to prove that they are builders in good faith of the improvements and the value of said Improvements, is to disturb a final executory decision; which may even cause its substantial amendment. It appears that the private respondent's opposition to the motion for the execution of the judgment, possession and demolition is their last straw to prevent the satisfaction of the judgment. Sad to say, We have to cut this straw. Although the alternative defense of being builders in good faith is only permissive, the counterclaim for reimbursement of the value of the improvements is in the nature of a compulsory counterclaim. Thus, the failure by the private respondents to set it up bars their right to raise it in a subsequent litigation (Rule 9, Section 4 of the Rules of Court). We realize the plight of the private respondents, the rule on comlpulsory counterclaim is designed to enable the disposition of the whole controversy at one time and in one action. The philosophy of the rule is to discourage multiplicity of suits. ACCORDINGLY, the petition is hereby GRANTED. The decision of the Court of Appeals dated April 28, 1989 and its resolution dated June 20, 1989 are SET ASIDE and the orders dated March 8, 1988 and August 19, 1988 of the Regional Trial Court of Cebu City, Branch 15 are REINSTATED. SO ORDERED.

Cayaba bought Rapadas Property thru bid. The Bank appealed but Cayaba was not due to filing out of time. He is also considered appealed. Writ of execution was issued against him to vacate the property.

LUCIO M. CAYABA, petitioner, vs. THE HONORABLE COURT OF APPEALS AND SPOUSES RODOLFO AND ROSARIO RAPADAS, respondents. G.R. No. 95918 March 5, 1993 NOCON, J.: Petitioner, about to be ejected from his property by order of the trial court, 1 claims he cannot be so ejected. Although he and the Rural Bank of Olongapo, Inc., which sold him the property in dispute, lost in the trial court, with the latter declaring the sale made by the bank in favor of petitioner as null and void, 2 petitioner manifests that said bank has appealed the decision. If the bank will win the appeal, his ownership of the property will necessarily be upheld as he has derived title to this property from the bank. As found by the trial court, the bare facts of the case are, as follows: [T]he plaintiffs (Rapadas, et al) executed a Deed of Real Estate Mortgage over their parcel of land located at Barrio Barretto, Olongapo City together with the improvements thereon to defendant Rural Bank in the amount of P15,000.00. The property is not yet covered by any sales or free patent. The defendant Rural Bank of Olongapo, Inc. extrajudicially foreclosed the property and was issued a Certificate of Sale being the highest bidder in the amount of P17,557.15. Defendant Lucio Cayaba bought the property from defendant bank under conditional sale on March 19, 1979. Before the expiration of the redemption period of one year, plaintiffs tried to repurchase or redeem the property from the defendant but the latter refused so they filed a motion to consignate the amount in Court. 3 On June 15, 1988, the trial court rendered a decision in favor of private respondents, which states in its dispositive portion, as follows: WHEREFORE, and in view of the foregoing, the Real Estate Mortgage executed on August 18, 1971 is hereby declared null and void; declaring the sale made by the bank in favor of Lucio Cayaba is also declared null and void; all other documents relating to the sale of the property is declared no force and effect; and that the plaintiffs are allowed to repurchase the property from the defendants in the amount of P17,557.15 plus legal interest thereon. 4 From said decision, defendant Rural Bank of Olongapo seasonably appealed to the Court of Appeals while the appeal of petitioner Cayaba was dismissed for having been filed out of time and so with his motion for reconsideration. Thereafter, the trial court issued an order for the issuance of a writ of execution. 5 Petitioner appealed said order by way of certiorari to the Court of Appeals but said court dismissed the petition. Hence, this petition where petitioner raises the following issue: WHEN THE CO-DEFENDANT RURAL BANK OF OLONGAPO TIMELY APPEALED THE ADVERSE DECISION OF THE REGIONAL TRIAL COURT TO THE COURT OF APPEALS, DID SUCH APPEAL BENEFIT PETITIONER? CONSEQUENTLY, COULD THE SAME DECISION BE VALIDLY ENFORCED BY EXECUTION AGAINST PETITIONER WHO DID NOT PERFECT AN APPEAL THEREFROM? 6 The issue raised by petitioner is not exactly novel. The rule on this matter is that a reversal of a judgment on appeal is binding on the parties to the suit but does not inure to the benefit of parties who did not join in the appeal. The recognized exception is when

their rights and liabilities and those of the parties appealing are so interwoven and dependent so as to be inseparable, in which case a reversal as to one operates as a reversal to all. 7 Petitioner is correct. The Court of Appeals' judgment which dismissed petitioner's petition questioning the writ of execution issued by the trial court should be reversed and set aside and the trial court restrained from enforcing the writ of execution pending the outcome of Rural Bank of Olongapo's appeal with the Court of Appeals. WHEREFORE, premises considered, the questioned Court of Appeals' decision of August 28, 1990 and its Resolution of October 19, 1990 affirming the same are hereby REVERSED and SET ASIDE. The Regional Trial Court, Third Judicial Region Branch 72, seating at Olongapo City, is hereby RESTRAINED from enforcing the Writ of Execution issued by virtue of its Order dated February 27, 1990. SO ORDERED.

ROLITO GO y TAMBUNTING vs. COURT OF APPEALS FACTS An information was filed charging herein petitioner Rolito Go for murder before the Regional Trial Court of Metro Manila. Petitioner voluntarily presented himself together with his two lawyers to the police upon obtaining knowledge of being hunted by the latter. However, he was immediately detained and denied his right of a preliminary investigation unless he executes and sings a waiver of the provisions of Article 125 of the Revised Penal Code. Upon omnibus motion for immediate release on recognizance or on bail and proper preliminary investigation on the ground that his warrantless arrest was unlawful and no preliminary investigation was conducted before the information was filed, which is violative of his rights, the same was granted but later on reversed by the lower court and affirmed by the Court of Appeals. The appellate court in sustaining the decision of the lower court held that petitioner's warrantless arrest was valid in view of the fact that the offense was committed, the petitioner was clearly identified and there exists valid information for murder filed against petitioner Hence, the petitioner filed this present petition for review on certiorari before the Supreme Court. ISSUE/S: The issues assailed in the case at bar are the following: 1.whether or not the warrantless arrest of herein petitioner was lawful, and 2. whether or not petitioner waived his right to preliminary investigation. RULING: The general rule on arrest provides that the same is legitimate if effected with a valid warrant. However, there are instances specifically enumerated under the law when a warrantless arrest may be considered lawful. Despite that, the warrantless arrest of herein petitioner Rolito Go does not fall within the terms of said rule. The police were not present at the time of the commission of the offense, neither do they have personal knowledge on the crime to be committed or has been committed not to mention the fact that petitioner was not a prisoner who has escaped from the penal institution. In view of the above, the allegation of the prosecution that petitioner needs to sign a waiver of the provisions of Article 125 of the Revised Penal Code before a preliminary investigation may be conducted is baseless. In this connection, petitioner has all the right to ask for a preliminary investigation to determine whether is probable cause that a crime has been committed and that petitioner is probably guilty thereof as well as to prevent him from the hassles, anxiety and aggravation brought by a criminal proceeding. This reason of the accused is substantial, which he should not be deprived of. On the other hand, petitioner did not waive his right to have a preliminary investigation contrary to the prosecutor's claim. The right to preliminary investigation is deemed waived when the accused fails to invoke it before or at the time of entering a plea at arraignment. The facts of the case show that petitioner insisted on his right to preliminary investigation before his arraignment and he, through his counsel denied answering questions before the court unless they were afforded the proper preliminary investigation. For the above reasons, the petition was granted and the ruling of the appellate court was set aside and nullified. The Supreme Court however, contrary to petitioner's allegation, declared that failure to accord the right to preliminary investigation did not impair the validity of the information charging the latter of the crime of murder.

Planters acquired Navarras property by foreclosure. After 1 year, Planters filed a writ of possession which also around that time Navarras filed a case against Planters for Specific performance of executing a deed of sale.

JORGE NAVARRA and CARMELITA BERNARDO NAVARRA and THE RRRC DEVELOPMENT CORP., petitioners, vs. COURT OF APPEALS and PIANTERS DEVELOPMENT BANK, respondents. G.R. No. 86237 December 17, 1991 The petitioners, spouses Jorge Navarra and Carmelita Bernardo, together with Ruben Bernardo and Cresencia Villnueva. and their family corporation, the RRRC Development Corporation, executed a real estate mortgage in favor of private respondent Planters Development Bank over five parcels registered land to secure the payment of a loan in the principal sum of P1,200,000.00. When the petitioners failed to pay their obligation, Planters caused the extra-judicial foreclosure of the mortgage in accordance with Act No. 3135 as amended. On May 15, 1984, a public auction was held; the following day the sheriff issued a certificate of sale in favor of Planters as the highest bidder. The one-year period having expired without the petitioners exercising their right of redemption, ownership of the five parcels of land was transferred to the private respondent upon the issuance in its name of new TCT Nos. 97073, 97074, 97075, 97076 and 97077 by the Register of Deeds of Makati, Metro Manila. Thereafter, Planters sent a letter of demand to the petitioners to vacate the premises, but the demand was rejected. It then filed a petition for the issuance of a writ of possession pursuant to Section 6 of Act No. 3135 as amended before the RTC-Makati, Branch 137. This was docketed as LRC Case No. M-1201. When the petition wan set for hearing on August 24, 1987, no oppositor appeared nor was a written opposition filed. Upon motion, Planters was allowed to present its evidence ex parte. On October 2, 1987, however, the spouses Navarro and the RRRC Development Corporation filed their written opposition, alleging inter alia that they were the plaintiff in Civil Case No. 16917 pending before the Regional Trial Court of Makati, Branch 145; that they were the owners of the properties subject thereof which they had acquired by virtue of a contract of sale; and that herein private respondent had already been declared in default in the said civil case. They added that the petition for the issuance of the writ of possession was a mere ruse of the private respondent. Civil Case No. 16917 is a complaint for specific performance filed by the petitioners on June 3, 1987, to compel the respondent bank to execute in their favor a deed of sale covering the five lots . The trial court reset the hearing of November 16, 1987, to December 14, 1982, then to January 25, 1988, and finally to February 16, 1988. The petitioners filed a written manifestation stating that they were not presenting evidence and, citing the case of Zaragoza vs. Diaz, 65 SCRA 315, arguedrather implausiblythat the petition for a writ of possession should be dismissed because it was filed after the one-year period of redemption. On February 22, 1988, the trial court issued the assailed order disposing as follows: WHEREFORE, the petition is hereby granted, and let a writ possession issue, to be implemented by the Sheriff of this Court, placing the possession of the five (5) parcels of land, including improvements existing thereon, situated at Barangay San Dionisio Paraaque, Metro-Manila covered by Transfer Certificate of Nos. 97073, 97074, 97075, 97076 and 97077, in favor of petitioner.
Their motion for reconsideration of the order having been denied on May 20, 1988, the petitioners filed with the respond Court of Appeals a special civil action for certiorari, allege that the trial court committed grave abuse of discretion amounting to lack of jurisdiction in issuing the orders of February 1988, and May 20, 1988. 2

The respondent court dismissed the petition on Septem 12, 1988, and denied the motion for reconsideration on December 22, 1988. The petitioner then came to this Court for rel under Rule 45 of the Rules of Court. The petitioners agree that it is the ministerial duty of court to issue a writ of possession in favor of the highest bid at the public auction conducted in the extra-judicial foreclos of the mortgage. This is authorized by Act No. 3135 as amend They also concede that as a rule any question regarding validity of the mortgage or of its foreclosure cannot be a le ground for refusing the issuance of the writ of possession.

But while the petitioners are not questioning these rules they submit that the writ of possession should not have be issued because they are already the owners of the subject property by virtue of the perfected and partially consummated contract of sale they had entered into with Planters. To prove their claim, they presented to the respondent court an exchange of letters which the petitioners insist has established a meeting of minds between them and Planters relative to their repurchase of the subject properties. 3

The Court has examined these letters and finds that the alleged repurchase involved only a house and lot and a restaurant building and lot while the assailed writ of possession involved five lots in all. Remarkably, the letters were never presented in LRC Case No. M-1201
As defined, newly-discovered evidence is evidence which could not have been discovered prior to the trial in the court below by the exercise of due diligence and which is of such character as would probably change the result. 5

The decision of the respondent Court of Appeals was promulgated on September 12,1988. On the other hand, the letters are dated October 24, 1988, and November 12, 1988. As they were not existing at the time the respondent court rendered its decision, and indeed prior to the trial, they could not by any kind of diligence have been discovered at all during that period. It is clear that they do not qualify as newly-discovered evidence under the definition as they came into existence only after the trial.
A no less important consideration is that the Rules of Court allow only two occasions when a party may file a motion for ne trial on the ground of newly-discovered evidence. That moti may be filed only with the trial court under Rule 37 or with Court of Appeals under Rule 53 but never with the Supreme Court. 6

The purchaser at an extra-judicial foreclosure sale has a right to the possession of the property even during the one-year period of redemption provided he files an indemnity bond. After the lapse of the said period with no redemption having been made, that right becomes absolute and may be demanded by the buyer even without the posting of a bond. There being no dispute that the lands were not redeem within one year from the registration of the extrajudicial for closure sale, it should follow that the private respondent he acquired an absolute right, as purchaser, to the writ of possession. The land registration court has the ministerial duty to issue that writ upon mere motion, conformably to the aforecited Section 7. The question of the ownership of the land or the alleged perfected or consummated sale can be threshed out in Civil Case No. 16917, which is still pending. What we are holding here only is that because that question could not be raised in the petition for the issuance of the writ of possession in LRC Case No. M-1201, the order of the trial judge granting the petition was conformable to law. WHEREFORE, the challenged decision of the Court of Appeals is AFFIRMED, with costs against the petitioner.