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[G.R. No. 140939.February 7, 2001]

CHENG vs. CA et al.

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated FEB 7 2001.

G.R. No. 140939(Alicia Cheng, petitioner vs. The Court of Appeals, Hon. Lolita C. Gal-lang, Presiding Judge, Regional Trial Court of Manila, Branch 44, and Marilyn Entrico Cheng, respondents.)

This petition for review on certiorari seeks to reverse and set aside the resolution of the Court of Appeals dated July 2, 1999 in CA-G.R. SP No. 52867. The resolution in question dismissed petitioner Alicia Cheng's petition for certiorari under Rule 65, which assailed the order of the Regional Trial Court of Manila, Branch 44, dated January 29, 1999 in Civil Case No. 98-88455. The RTC order set aside the writ of execution pending appeal issued by the Metropolitan Trial Court of Manila, Branch 26 in Civil Case No. 154913-CV. Petitioner also assails the resolution of the appellate court on November 26, 1999, which denied her motion for reconsideration.

The factual antecedents of this case are as follows:

Petitioner is the owner of two parcels of land located at No. 1829 blumentritt Street, Sta. Cruz, Manila as evidenced by Transfer Certificates of Title Nos. 184581 and 184582. On March 11, 1997, she filed a complaint against private respondent for ejectment, docketed as Civil Case No. 154913-CV, with the Metropolitan Trial Court of Manila (MeTC).

On October 1, 1997, the MeTC decided the ejectment suit in petitioner's favor and ordered private respondent to vacate the premises and surrender peaceful possession of the disputed property to petitioner.

On November 7, 1997, private respondent filed her notice of appeal. Petitioner then moved for execution pending appeal for failure of private respondent to file a supersedeas bond.

On February 9, 1998, the MeTC granted petitioner's motion for execution pending appeal and issued the writ of execution.

On April 23, 1998, private respondent filed a special civil action for certiorari, prohibition, and mandamus with the RTC of Manila, docketed as Civil Case No. 98-88455 to annul and set aside the order of the MeTC granting petitioner's motion for execution pending appeal as well as the writ of execution.

In its order dated January 29, 1999, the RTC of Manila, Branch 44, ordered MeTC to give due course to the appeal. The RTC held that the order of the MeTC granting the writ of execution pending appeal was null and void.

Petitioner moved for the reconsideration of the aforesaid order, but the motion was denied. She then filed a special civil action for certiorari with the Court of Appeals, docketed as CA-G.R. SP No. 52867.

On July 9, 1999, the appellate court dismissed CA-G.R. SP No. 52867 on the ground that an appeal and not a special civil action for certiorari was the proper remedy. The appellate court held that the action was actually an appeal from the order (actually a decision) of the RTC, which disposed of Civil Case No. 98-88455 on the merits. In Civil Case No. 98-88455, the RTC addressed the particular issue of whether or not the MeTC order granting writ of execution is null and void. The RTC ruled in the affirmative and after having declared null and void the MeTC order, nothing more is to be done regarding the RTC order but to appeal. Hence, certiorari would not lie.

Petitioner contends that the Court of Appeals erred in holding that appeal, and not a special civil action of certiorari, is the proper remedy. She argues that since the questioned RTC order setting aside the writ of execution was interlocutory in nature, it could not be appealed. She claims that the order of respondent RTC judge in Civil Case No. 98-88455 was interlocutory because it did not touch on the merits of private respondent's appeal and, hence, did not settle the case with finality.

We are not persuaded by petitioner's contention. The records of this case show that private respondent relied upon two remedies in assailing the actions of the MeTC. First, in challenging the MeTC judgment in Civil Case No. 154913-CV, she filed a notice of appeal within the reglementary period. Second, she instituted a special action for certiorari to question the order granting the writ of execution pending appeal. The RTC in Civil Case No. 98-88455 observed that while private respondent seasonably filed her notice of appeal, the MeTC did not forward the records of the case to the RTC. Instead, it waited for petitioner to file a motion for execution pending appeal and ordered private respondent to put up a supersedeas bond in the amount of P500,000.00 within 72 hours from receipt of its order. Private respondent then moved for an extension of time to post the supersedeas bond due to the huge amount involved. The MeTC, however, denied private respondent's motion and ordered the issuance of the writ of execution.

As correctly held by the RTC, the actions undertaken by the MeTC were beyond its jurisdiction since an appeal had been perfected with the filing of a notice of appeal by private respondent. Once an appeal has been perfected, the trial court is divested of jurisdiction over the case. Therefore, all orders issued subsequent to the perfection of the appeal were null and void for want of jurisdiction and the MeTC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in ordering the issuance of the writ of execution. Since there was an appeal pending, the RTC correctly refrained from discussing the merits of the judgment in the ejectment case since these could be properly dealt with in the course of the regular appeal. It is, therefore, incorrect for petitioner to argue that the RTC order dated January 29, 1999 in Civil Case No. 98-88455 is an interlocutory order.

An interlocutory order is one which does not terminate or finally dispose of the case, because it leaves something to be done by the court before the case is finally decided on the merits. The RTC order of January 29, 1999 disposed of Civil Case No. 98-88455 with finality. There was nothing more left to be done in Civil Case No. 98-88455 after the RTC had declared null and void the order granting the writ of execution pending appeal and ordered the MeTC to give due course to private respondent's appeal. Otherwise put, the special civil action for certiorari had been decided with finality. The challenged order or decision being final, the Court of Appeals did not err when it held that the proper remedy of petitioner in assailing the RTC order is appeal and not an action for certiorari under Rule 65. It is axiomatic that certiorari will lie only if there is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law. In this case, the remedy of appeal was available to the petitioner. Hence, resort to certiorari was improper.

WHEREFORE, the petition is DISMISSED. The assailed resolutions of the Court of Appeals promulgated on July 27 and November 26, 1999, are AFFIRMED.

Very truly yours,

(Sgd.) TOMASITA M. DRIS
Clerk of Court


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