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[G.R. No 165614. February 14, 2005]

ASUNCION vs. MACAPAGAL

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated FEB 14 2005.

G.R. No. 165614 (Spouses Jessie Asuncion And Rebecca Asuncion vs. Hon. Demetrio B. Macapagal, Sr., Pairing Judge, Br. 78, RTC of Q.C. and Bienvenido B. Galang.)

Before us are the Petition for Review on Certiorari, private respondent's Opposition and Answer thereto and petitioners' Comment as required in the Court's Resolution dated November 24, 2004.

The petition is anchored mainly on the argument that the Regional Trial Court's Resolution dated October 4, 2004, granting the issuance of a Writ of Possession in favor of private respondent was premature because there is still a pending case for Annulment of Sheriff's Sale and Damages docketed as Civil Case No. Q-01-43175 before Branch 227 of the Regional Trial Court of Quezon City. According to petitioners, until the final resolution of the factual issues on the validity of the sheriff's sale, private respondent cannot be entitled to possession of the subject property.

Private respondent, on the other hand, alleged in his Opposition and Answer that the case for Annulment of Sheriff's Sale and Damages docketed as Civil Case No. Q-01-43175 pending before Branch 227 of the Regional Trial Court of Quezon City had already been dismissed as far back as December 10, 2002.

In their Comment, petitioners admit that the Regional Trial Court of Quezon City, Branch 227, has indeed issued a Resolution dated December 10, 2002, dismissing the case. They also admitted that they ceased to pursue the prosecution of the case pending before Branch 227 because they had entered into a Compromise Agreement with private respondent. Petitioners, however, stated that on January 30, 2004, they filed with said court a Motion to Revive Complaint, alleging therein that petitioners had not received a copy of the resolution dismissing the case. Petitioners also allege that to date, the lower court has not yet acted upon said motion to revive.

Sec. 8 of Act 3135, as amended, provides that the mortgagor may file a petition with the trial court which issued the writ to set aside the sale and for cancellation of the writ of possession within 30 days after the purchaser-mortgagee was given possession. Thus, in Spouses Samson vs. Rivera, [1] cralaw we reiterated that:

This Court has consistently held that the duty of the trial court to grant a writ of possession is ministerial. Such writ issues as a matter of course upon the filing of the proper motion and the approval of the corresponding bond. No discretion is left to the trial court. Any question regarding the regularity and validity of the sale, as well as the consequent cancellation of the writ, is to be determined in a subsequent proceeding as outlined in Section 8 of Act 3135.

Clearly, therefore, the present petition is utterly bereft of merit.

IN VIEW OF THE FOREGOING, the petition is hereby DENIED for lack of merit.

SO ORDERED.

Very truly yours

(Sgd.) LUDICHI YASAY-NUNAG
Clerk of Court

Endnotes:

^[1] cralaw G.R. No. 154355, May 20, 2004.

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