THIRD DIVISION

[G.R. No. 111662. October 23, 1997.]

A.G. DEVELOPMENT CORPORATION , petitioner, vs . HONORABLE

COURT OF APPEALS, HONORABLE IGNACIO CAPULONG, Presiding
Judge, Regional Trial Court of Makati, Branch 134; NATIONAL
HOUSING AUTHORITY; and A. FRANCISCO REALTY AND
DEVELOPMENT CORPORATION , respondents.

Romulo, Mabanta, Buenaventura, Sayoc, & De los Angeles for petitioner.

Enrique Agana & Associates for private respondents.

SYNOPSIS

Petitioner A.G. Development Corporation (AGDC) and public respondent National Housing
Authority (NHA) entered into a memorandum of agreement, wherein the former agreed to
construct on its lot a dormitory-apartment-commercial building for the latter. AGDC
executed in favor of NHA a promissory note and a real estate mortgage over the land as
security for the obligation. NHA, however, rescinded the agreement on the ground that
AGDC was not able to complete the project on time and demanded the return of the initial
amount paid. The demand was refused as a result of which, the real estate mortgage was
foreclosed and the property sold to NHA as the highest bidder. The one-year period to
redeem having expired, a new Transfer Certificate of Title (TCT) was issued in favor of
NHA, thereafter, a writ of possession was applied for and granted by the RTC of Quezon
City. AGDC filed a complaint against NHA before the RTC of Makati for breach of contract,
declaration of nullity of promissory note and real estate mortgage, and annulment of
foreclosure sale and reversion of possession and title. NHA filed a motion to dismiss on
the ground of litis pendentia, which was denied by the trial court. While the case was
pending, private respondent A. Francisco Realty and Development Corp. (AFRDC) filed a
motion to intervene claiming that it is an innocent purchaser for value of the subject
property since it has already purchased the foreclosed property from NHA. AFRDC then
filed a motion to dismiss before the Makati RTC, reasoning that the said court has no
jurisdiction to entertain the complaint and annul the writ issued by the Quezon City RTC
since both are co-equal or coordinate jurisdiction. The Makati RTC ruled in favor of AFRDC
and dismissed AGDC's complaint. Recourse to the Court of Appeals proved futile. Hence,
the present petition. The principal issue to be resolved is whether the issuance of a writ of
possession by the Quezon City RTC constitutes res judicata as to bar the complaint filed
by AGDC. aEIADT

The Supreme Court ruled that the issuance of a writ of possession is not a judgment on
the merits. It is merely a ministerial function, as such; the court neither exercises its official
discretion nor judgment. The doctrine of res judicata applies only to judicial or quasi-
judicial proceedings and not to the exercise of administrative powers or to legislative,
executive or ministerial determination. Cases disposed of on technical grounds do not fall
within the doctrine. The issuance of the writ of possession was simply an incident in the
transfer of title.
Petition granted.
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 SYLLABUS

1. REMEDIAL LAW; CIVIL PROCEDURE; ELEMENTS OF RES JUDICATA. It is an oft-

repeated rule that for res judicata to apply, the following requisites must concur: a) the
former judgment must be final; b) the court which rendered it had jurisdiction over the
subject matter and the parties; c) the judgment must be on the merits; and d) there must
be between the first and second actions identity of parties, subject matter and causes of
action. Although not explicitly stated, a basic requisite for res judicata to apply is that there
are two cases which have been decided on the merits.
2. ID.; ID.; ID.; THE ISSUANCE OF THE WRIT OF POSSESSION BY THE REGIONAL TRIAL
COURT OF QUEZON CITY WAS NOT A JUDGMENT ON THE MERITS BUT AN INCIDENT IN
THE TRANSFER OF TITLE. The issuance of a writ of possession is not a judgment on the
merits. A writ of possession is generally understood to be an order whereby the sheriff is
commanded to place a person in possession of a real or personal property, such as when
a property is extra-judicially foreclosed. In this regard, the issuance of a writ of possession
to a purchaser in an extra-judicial foreclosure is merely ministerial function. As such, the
Court neither exercises its official discretion nor judgment. In other words, the issuance of
the writ of possession is summary in nature, hence the same cannot be considered a
judgment on the merits which is defined as one rendered after a determination of which
party is right, as distinguished from a judgment upon some preliminary or formal technical
point. Furthermore, the doctrine of res judicata applies only to judicial or quasi-judicial
proceedings and not to the exercise of administrative powers or to legislative, executive or
ministerial determination. Accordingly, cases disposed of on technical grounds do not fall
within the doctrine of res judicata. Hence, the issuance of the writ of possession by the
Regional Trial Court of Quezon City was not a judgment on the merits but simply an
incident in the transfer of title.
3. ID.; ID.; ID.; A LAND REGISTRATION CASE IS NOT AN ACTION AS DEFINED BY THE
RULES OF COURT. We also note that LRC Case No. 3067 (85) is not an action as defined
by law. An action is an act by which one sues another in a court of justice for the
enforcement or protection of a right or the prevention or redress of a wrong and such is
commenced by filing a complaint with the Court. However, in the procedure for the
issuance of a writ of possession, no complaint is necessary, the filing of ex-parte motion
being enough. Indeed, the term "action" does not include non-judicial proceedings,
although they are before a court, as in cases where the court does not act in a judicial
capacity. There is also another consideration that supports this conclusion since an extra-
judicial foreclosure only requires the posting and publication of the notices to effect the
same. It has been held that a proceeding to foreclose a mortgage by advertisement is not
an action. caSEAH

DECISION

ROMERO , J : p

Challenged in this petition for review under Rule 45 of the Rules of Court is the decision of
respondent Court of Appeals in CA G.R. S.P. No. 30227 which upheld the order of the
Regional Trial Court (RTC), Branch 134, Makati, dismissing petitioner's complaint on the
ground of the lack of jurisdiction.
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 The pertinent facts are as follows:
On November 4, 1981, petitioner A.G. Development (AGDC) and public respondent
National Housing Authority (NHA) entered into a "Memorandum of Agreement," 1 wherein
the former agreed to construct on its lot a dormitory-apartment-commercial building for
the latter at a total cost of Eleven Million Four Hundred Fifty Two Thousand Nine Hundred
Eighty Nine Pesos (P11,452,989.00). Pursuant to the agreement, AGDC executed in favor
of NHA a promissory note 2 and a real estate mortgage 3 over the land as a security for the
obligation. Thereafter, NHA made an initial payment of three million three hundred eight
thousand four hundred forty (P3,308,440.00) to AGDC to cover a portion of the contract
price.
On August 30, 1983, however, NHA rescinded the agreement and demanded the
immediate return of the initial amount paid on the ground that AGDC was not able to
complete the project on time. The demand was refused, as a result of which, the real
estate mortgage was extra-judicially foreclosed and the property sold to NHA as the
highest bidder. The one-year period to redeem having expired, a new Transfer Certificate of
Title (TCT) was issued in favor of NHA; thereafter, a writ of possession was applied for
and granted by the Regional Trial Court of Quezon City docketed as LRC Case No. 3067
(85).
On December 3, 1986, AGDC filed a complaint against NHA before the Makati RTC
docketed as Civil Case No. 15495 for breach of contract, declaration of nullity of the
promissory note and real estate mortgage, and annulment of foreclosure sale and
reversion of possession and title. NHA filed a motion to dismiss on the ground of litis
pendentia, which was denied by the trial court. While the case was pending, private
respondent A. Francisco Realty and Development Corp. (AFRDC) filed a Motion to intervene
claiming that it is an innocent purchaser for value of the subject property since it had
already bought the foreclosed property from NHA. 4
Consequently, AFRDC filed a motion to dismiss before the Makati RTC, reasoning that the
said court has no jurisdiction to entertain the complaint and annul the writ issued by the
Quezon City RTC since both are co-equal or coordinate jurisdiction. The Makati RTC ruled
in favor of AFRDC and dismissed AGDC's complaint. 5 Recourse to the Court of Appeals
proved futile. Hence, this petition.
In resolving the instant petition, the principal issue to be addressed is whether the
issuance of a writ of possession by the Quezon City RTC constitutes res judicata as to bar
the complaint filed by AGDC. aisadc

It is an oft-repeated rule that for res judicata to apply, the following requisites must
concur:
a) the former judgment must be final;
b) the court which rendered it had jurisdiction over the subject matter and the parties;
c) the judgment must be on the merits; and
d) there must be between the first and second actions identity of parties, subject
matter and causes of action. 6
Although not explicitly stated, a basic requisite for res judicata to apply is that there are
two cases which have been decided on the merits.
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 In affirming the Makati RTC's dismissal of AGDC's complaint, the Court of Appeals ruled
that the issuance of the writ of possession has the effect of confirming the title of NHA
over the property in question. 7 As such, the grant of said writ constitutes an absolute bar
to a subsequent action. It is final as to the claim of nullity of the promissory note, real
estate mortgage and the resultant extra-judicial foreclosure sale. We cannot agree with the
Court of Appeals that the action to annul both the real estate mortgage and the
foreclosure sale is barred by res judicata.

The issuance of a writ of possession is not a judgment on the merits. A writ of possession
is generally understood to be an order whereby the sheriff is commanded to place a
person in possession of a real or personal property, 8 such as when a property is
extrajudicially foreclosed. 9 In this regard, the issuance of a writ of possession to a
purchaser in an extra-judicial foreclosure is merely a ministerial function. 1 0 As such, the
Court neither exercises its official discretion nor judgment. 1 1 In other words, the issuance
of the writ of possession is summary in nature, 1 2 hence the same cannot be considered a
judgment on the merits which is defined as one rendered after a determination of which
party is right, as distinguished from a judgment rendered upon some preliminary or formal
technical point. 1 3
Furthermore, the doctrine of res judicata applies only to judicial or quasi-judicial
proceedings and not to the exercise of administrative powers or to legislative, executive or
ministerial determination. 1 4 Accordingly, cases disposed of on technical grounds do not
fall within the doctrine of res judicata. 1 5 Hence, the issuance of the writ of possession by
the Regional Trial Court of Quezon City was not a judgment on the merits but simply an
incident in the transfer of title.
We also note that LRC Case No. 3067 (85) is not an action as defined by law. An action is
an act by which one sues another in a court of justice for the enforcement or protection. of
a right or the prevention or redress of a wrong 1 6 and such is commenced by filing a
complaint with the Court. 1 7 However, in the procedure for the issuance of a writ of
possession, no complaint is necessary, the filing of an ex parte motion being enough. 1 8
Indeed, the term "action" does not include non-judicial proceedings, although they are
before a court, as in cases where the court does not act in a judicial capacity. 1 9
There is also another consideration that supports this conclusion since an extra-judicial
foreclosure only requires the posting and publication of the notices to effect the same. 20
It has been held that a proceeding to foreclose a mortgage by advertisement is not an
action. 2 1
In the absence of the necessary elements, the doctrine of res judicata cannot be applied in
the instant petition. cdtai

WHEREFORE, in view of the foregoing, the decision appealed from is hereby GRANTED.
Civil Case No. 15495 is hereby REINSTATED.
SO ORDERED.
Melo, Francisco and Panganiban, JJ ., concur.
Narvasa, C .J ., is on leave.
Footnotes

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 1. Rollo, pp. 50-58.
2. Ibid., p. 65.
3. Id., pp. 66-68.
4. Id., pp. 78-80.
5. Id., pp. 110-111.
6. Mangoma v. Court of Appeals, 241 SCRA 21 (1995); Guevarra v. Benito, 247 SCRA 570
(1995); Cokaliong Shipping Lines, Inc. v. Amin, 260 SCRA 122 (1996).

7. Rollo, p. 145.
8. Moreno, Philippine Law Dictionary, 1972.
9. Sec. 7 of Act 3135, as amended.

10. Vaca v. Court of Appeals, 234 SCRA 146 (1994); F. David Enterprises v. Insular Bank of
America, 191 SCRA 516 (1990).
11. Lamb v. Philipps, 22 Phil 456 (1912).
12. Tabios, Problems Involving A Writ of Possession, 218 SCRA 585 (1993).

13. Santos v. IAC, 145 SCRA 238 (1986).

14. 50 C.J.S. 27 603.
15. 46 Am Jur 2d 477.

16. Hagans v. Wislizenus, 42 Phil. 880 (1922).

17. Sec. 5, Rule 1, 1997 Rules on Civil Procedure.

18. Sec. 7, Act 3135, as amended.

19. Patterson v. Murray, 53 NC 278.
20. Sec. 3, Act 3135, as amended.
21. Golcher v. Brisbin, 20 Minn. 453.

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