21. Cometa v.

IAC redemption has expired and no redemption has been

made by the judgment debtor.
Facts:
A writ of possession is complementary to a writ of
A suit for damages was filed by private respondent execution, and in an execution sale, it is a consequence
Jose Franco before the CFI. In the said case, CFI of a writ of execution, a public auction sale, and the
awarded respondent Franco fulfillment of several other conditions for conveyance set
The judgment became final and a writ of execution by law. The issuance of a writ of possession is
was issued on March 9, 1978 dependent on the valid execution of the procedural
Thereafter, the sheriff levied on execution three stages preceding it. Any flaw afflicting any of its
commercial lots of petitioner Cometa and sold it at stages, therefore, could affect the validity of its
public auction. issuance.
Petitioner Herco Realty and Agri Development
Corporation filed with the same Branch CFI an action In the case at bar, the validity of the levy and sale of
to annul the levy on execution and sale at public the properties is directly put in issue in another case
auction of the real properties. by the petitioners. This Court finds it an issue which
Petitioner alleged that it owned the lots in question, requires preemptive resolution. For if the respondent
and was validly transferred to it by Cometa before the acquired no interest in the property by virtue of the levy
execution and sale at public auction. and sale, then, he is not entitled to possession.
TC ordered the Register of Deeds to cancel the title
of Cometa and issue new titles in favor of respondent WHEREFORE, the decision appealed from is hereby
Franco REVERSED. The order of the trial court dated November
Pursuant to the TC order, respondent Franco filed 18, 1983 is reinstated.
with the RTC a motion for the issuance of a writ of SO ORDERED.
possession.
The petitioner opposed the motion on the ground that
there is pending before another Regional Trial Court
an action for the annulment of the levy and sale of the
properties in question.
TC issued an order granting the writ of possession,
but the same was reconsidered and ruled that the
grant of writ of possession was premature.
IAC reversed the TC ruled in favor of respondent and
granted the writ of possession
Hence, this petition

Issue: W/N the issuance of writ of possession to

respondent Franco is proper.

Held: No. The lower court should not have issued a

writ of possession.

In the case of Mabale v. Apalisok (88 SCRA 234), this

Court held that writ is available in the following instances:
(1) in a land registration proceeding, which is a
proceeding in rem (Sec. 17, Act No. 496);
(2) in an extrajudicial foreclosure of a realty mortgage
(Sec. 7, Act No. 3135);
(3) in a judicial foreclosure of a mortgage, a quasi in
rem proceeding, provided that the mortgagor is in
possession of the mortgaged realty and no third
person, not a party to the foreclosure suit, had
intervened, and
(4) in execution sales (last par. of sec. 35, Rule 39, Rules
of Court).

From the foregoing, it can be seen that the writ of

possession may issue in favor of a purchaser in an
execution sale when the deed of conveyance has been
executed and delivered to him after the period of