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[G.R. No. 141318. January 31, 2001]

SAMUEL UY vs. DY TEBAN HARDWARE & AUTO SUPPLY, INC.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JAN 31 2001.

G.R. No. 141318 (Samuel Uy vs. Dy Teban Hardware and auto Supply, Inc.)

This is a petition for certiorari seeking the reversal of the Resolution of the Court of Appeals dated December 8, 1999, which granted respondent's motion for reconsideration of the denial of the motion to dismiss of the petition. In the assailed resolution, the Court of Appeals dismissed the petition of herein petitioner on the ground that no factual issue was raised in the sole assignment of error. The Court of Appeals, likewise, denied the motion for reconsideration of its

Resolution issued on December 8, 1999. Petitioner contends that the Court of Appeals erred in finding that no factual issue was raised. In the petition filed with the Court of Appeals, the petitioner raised the sole issue, thus: The lower court erred in denying appellant's motion to direct the sheriff to turn over the property attached to the third party claimant-appellant. Petitioner argues that there are two underlying factual issues that must be resolved, to wit: Isuzu Jitney vehicle; and, whether or not the chattel mortgage over this vehicle was constituted long before it was attached. After due consideration of the records of the case, this Court finds no reversible error assailed resolution of the Court of Appeals. On its face, the sole assignment of error raised in the petition involves a pure question of law over which the Court of Appeals does not have jurisdiction. The alleged underlying factual issues are more apparent than real. Petitioner claims to be entitled to possession of the jitney subject of this litigation. However, his claim of being mortgagee admits that he has no title over it in a foreclosure sale. Under the law, the property subject of a chattel mortgage is not delivered to the mortgagee, otherwise it becomes a pledge. 1 CIVIL CODE, Art. 2140.In other words, possession of the mortgaged property during the pendency of the chattel mortgage remains with the mortgagor. In this case, the petitioner has not shown that he has foreclosed the mortgage and acquired the property in a foreclosure sale. There is no showing of a foreclosure, much less a foreclosure sale. Consequently, even if the alleged underlying factual issues are hypothetically admitted, they will neither establish petitioner's title over the property nor right of possession thereto. This is the reason why the trial court correctly stated that the petitioner as a third-party claimant has no right to appeal from the denial of his claim his remedy being a recourse to a separate reinvindicatory action. 2 Estonia v. Court of Appeals, 266 SCRA 627, 638 - 640 (1997); Rodriguez v. Court of Appeals, 261 SCRA 423-429 (1996); Sy v. Discaya, 181 SCRA 378, 383 - 384 (1990); Traders Royal Bank v. Intermediate Appellate Court, 133 SCRA 141, 146-149 (1984).As a third-party claimant, he can neither appeal nor avail of certiorari as a remedy since, admittedly, he is not a party to the original case and there is no showing that he has intervened before or during trial.

IN VIEW WHEREOF, the petition is hereby DENIED. The Court further Resolves to:

(a) GRANT the motion of petitioner for an extension of fifteen (15) days from November 23, 2000 within which to file a reply to the comment on the petition for review on certiorari; and

(b) NOTE the said reply thereafter filed.

Very truly yours,

(Sgd.)VIRGINIA ANCHETA-SORIANIO

Clerk of Court


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