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RAMOS, Paul Reinald S.

2A

ZACARIAS COMETA AND HERCO REALTY


AND AGRI-DEVELOPMENT CORPORATION
vs.
HON. INTERMEDIATE APPELLATE COURT
AND JOSE FRANCO
G.R. No. L-69294, June 30, 1987

FACTS: On July 2, 1976, a suit for damages was filed by Jose Franco against
Zacarias Cometa before the Court of First Instance. In said case, the Court of First
Instance awarded the damages prayed for by Franco amounting to P57,000.
Eventually, the judgment became final and a writ of execution was issued on March
9, 1978. Thereafter, the sheriff levied on execution three commercial lots of Cometa
and sold such lots in a public auction to Franco.

Herco realty and Agri Development Corporation filed with the Court of First Instance
an action to annul the levy on execution and sale at public auction of the commercial
lots because it contended that the ownership of the lots has been transferred to it by
Cometa before the levy on execution and sale at the public auction in favor of Franco
took place.

The trial court then ordered the register of Deeds to cancel the title of Cometa and
issue new titles in favor of Franco. Pursuant to the order of the trial court, Franco filed
with the Court of First Instance a motion for issuance of a writ of possession. Herca
Realty opposed the motion on the ground that there is pending before another CFI an
action for annulment of the levy and sale of the properties in question.

The trial court issued an order granting the writ of possession but when the same was
reconsidered, it ruled that the grant of a writ of possession was premature. The
Intermediate Appellate Court reversed the Court of First Instance and granted the writ
of possession.

ISSUE: Whether the issuance of a writ of possession to Franco is proper

RULING: No. The lower court should not have issued a writ of possession.

In the case of Mabale v. Apalisok, the Supreme Court held:


That writ is available
(1) in a land registration proceeding, which is a proceeding in rem
(2) in an extrajudicial foreclosure of a realty mortgage
(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
(4) in execution sales
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 redemption has expired and no redemption has
been made by the judgment obligor.

A writ of possession is complementary to a writ of execution, and in an execution sale,


it is a consequence of a writ of execution, a public auction sale, and the fulfillment of
several other conditions for conveyance set by law. The issuance of a writ of
possession is dependent on the valid execution of the procedural stages preceding it.
Any flaw afflicting any of its stages, therefore, could affect the validity of its issuance.

In the case at bar, the validity of the levy and sale of properties is directly put in another
case by the petitioners. The Supreme Court finds it an issue which requires
preemptive resolution. For if the responded acquired no interest in the property by
virtue of the levy and sale, then, he is not entitled to possession.