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G.R. No. L-4893 October 1, 1908
PASAY ESTATE CO., LTD. vs. SIMPLICIO DEL ROSARIO, ET AL. -->

EN BANC

G.R. No. L-4893 October 1, 1908

THE PASAY ESTATE CO., LTD., plaintiff, vs. THE HONORABLE SIMPLICIO DEL ROSARIO, ET AL., defendants.

Ortigas and Fisher, for plaintiff.
Simplicio del Rosario, on his own behalf.

WILLARD, J.:

This is an original action of mandamus in this court.chanroblesvirtualawlibrary chanrobles virtual law library

The grantor of the plaintiff, E.H. Warner, obtained a final decree in the Court of Land Registration, by virtue of which he was inscribed as the owner of the Pasay Estate. That judgment was confirmed by this court. (Warner vs. 771 Objectors, 5 Phil. Rep., 153.) After the case had been remanded to the Court of Land Registration and a writ of possession had been issued, under which a party only of the property had been delivered to the plaintiff, it made in July, 1908, an application for an alias execution. The court, by an order of July 17, 1908, directed the issue of another writ of possession, but expressly limited its effects to those persons who, being parties in the former proceeding, had appeared therein filed with a writ so limited, brought this action against the judge of that court and certain defendants in the former proceedings who had been served with process therein but had not appeared nor answered.chanroblesvirtualawlibrary chanrobles virtual law library

Several answers have been filed in this proceeding, among which is one by the judge himself. To that answer the plaintiff has demurred, and the case is now before us for the resolution of this demurrer.chanroblesvirtualawlibrary chanrobles virtual law library

Section 17 of the Land Registration Act (No. 496), as amended by section 5 of Act No. 1108, is in part as follows:

SEC. 17. The Court of Land Registration, in all matters over which it has jurisdiction, may enforce its orders, judgments, and decrees in the same manner as orders, judgments, and decrees are enforced in the Court of First Instance, including a writ of possession directing the governor of sheriff of any province or of the city of Manila to place the applicant in possession of the property covered by a decree of the court in his favor; . . . .

The theory of the judge who made the error is that this writ of possession can be directed only against those who have been defeated in the suit, and those persons only can be considered as defeated who have appeared and answered and against whom a judgment has been rendered. In effect, the judge says that a person who has been duly served with process in a proceeding in the Land Court, who has failed to appear or answer, and against whom a judgment by default has been entered, can not be said to have been defeated by the suit, and against him no writ of possession can be issued. This theory can not be sustained. The question here has nothing to do with a person who is not duly served with process, but is limited to those persons who, being served with process, have neither appeared nor answered. It is very clear that such persons are just as much defeated in a suit as they would have been evidence, and finally had a judgment entered against them.chanroblesvirtualawlibrary chanrobles virtual law library

In his answer, the judge moreover says, as to these persons who have not appeared, that the plaintiff has a remedy, by proceeding in a court of justice of the peace against them: if they are tenants, for nonpayment of the rent or other breach of the conditions of the lease; or, if they are precarious occupants, for their summary eviction.chanroblesvirtualawlibrary chanrobles virtual law library

But this construction of the law entirely defeats its purpose. It would compel a successful litigant in the Court of Land Registration to commence other actions in other courts for the purpose of securing the fruits of his victory. The evident purpose of the law was to prevent that very thing; and we think it clear, from the language of section 17, above quoted, that the plaintiff is entitled to such a writ of possession as it asked for.chanroblesvirtualawlibrary chanrobles virtual law library

The demurrer is accordingly sustained, and the defendant judge allowed ten days within which to file an amended answer. So ordered.chanroblesvirtualawlibrary chanrobles virtual law library

Arellano, C.J., Torres, Mapa and Tracey, JJ., concur.