[G.R. No. 144259. October 2, 2000]

HEIRS OF CRISTOBAL BATE, et al. vs. CA, et al.

THIRD DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated OCT 2 2000.

G.R. No. 144259 (Heirs of Cristobal Bate, represented by Narciso Bate vs. Court of Appeals, Simplico Alindajao and Petrona Alindajao.)

Petitioners assail the decision of the Court of Appeals denying their petition for certiorari and prohibition which sought to enjoin and set the order issued by the regional trial court in Civil Case No. CEB R-14495.

On October 28, 1994, the Regional Trial Court of Cebu issued an order which disposed:

WHEREFORE, resolving all the incidents relative to the execution of the Judgment in this case, Order is issued as follows:

1. Dismissing the Third Party Claim of Heirs of Cristobal Bate as being unsubstantiated and without merit;

x x x��� x x x��� x x x

4. Approving the Subdivision Plan submitted by Engr. Raul G. Pacana (p. 428, Record) and ordering the partition of the property in question in accordance therewith;

5. Ordering the partition of Lot No. 427-D stated therein with an area of 1,615 square meter as follows:

To Petrina Alindajao������������� -���������� � thereof or 805.5 sq. m.

To Simplico Alindajao����������� -���������� 3/8 thereof or 605.625 sq. m.

To Heirs of Cristobal Bate��� -���������� 1/8 thereof or 201.875 sq. m.

Prior to the present controversy, the subject land was occupied by the spouses Garciana Alindajao, Esperidion's daughter and Cristobal Bate, predecessor of petitioners.

However, private respondents Simplicio Alindajao, Garciana's brother, and Petrona Alindajao, daughter of Simeon, asserting their right to inherit a share of the subject lot by right of representation filed an action for recovery of possession and ownership against the spouses Bate. The same was, however, dismissed.

Upon appeal, the Court of Appeals in CA-G.R. CV 20824 rendered a decision dated July 2, 1992 declaring private respondents and the spouses bate as co-owners of the subject land. There being no appeal interposed, the decision became final and executory.

On June 21, 1993, the trial court issued a writ of execution which was returned by the sheriff who found out that the land subject of execution contained an area of 8,449 square meters contrary to what was stated in private respondents' complaint as 6,834 square meters. The sheriff recommended a re-survey of the property which was approved by the trial court. Hence, a relocation survey of the land was conducted and a subdivision plan was submitted to the trial court showing that the land, which was designated as Cadastral Lot No. 427, contained an area of 8,449 square meters and was subdivided into four lots, to wit: the three lots comprising the 6,834-square-meter land involved in the complaint, and the fourth lot - the remaining area of 1,615 square meters as Lot 427-D.

On March 4, 1994, petitioners, the heirs of the now deceased Cristobal Bate, filed a third-party claim alleging that the land sought to be executed is a consolidation of the land subject of the complaint and another parcel of land with an area of 2,865 square meters covered by other tax declarations, and that this is the reason for the discrepancy noted by the sheriff in his return. Consequently, they contended only the 6,834 square meters lot could be the subject of execution. but the claim was dismissed for being unsubstantiated and in the same order, the trial court approved the subdivision plan and ordered the partition of the disputed property.

Unperturbed, petitioners again filed a petition for certiorari and prohibition before the Court of Appeals alleging that the Court of Appeals' earlier decision in CA-G.R, CV No. 20824 which has since become final and executory is void for having been issued in violation of petitioners' right to due process, because their counsel failed to file an appeal. The appellate court dismissed. Subsequent appeal to the Supreme Court likewise failed.

Finally, on February 19, 1998, the trial court issued an Order granting private respondents' Motion for Removal/Demotion/Destruction of Improvements on the Property Subject of Writ of Execution issued on June 21, 1993. A writ of demotion was issued commanding all the occupants of the property to voluntarily "remove/demolish" the improvements introduced therein and to report the action taken within ten days from receipt thereof. This writ, however, was not enforced because the parties entered into an agreement whereby petitioners agreed to voluntary remove/demolish the structures found in and vacate the subject property.

In a desperate attempt to delay the inevitable, on July 3, 1998, petitioners filed a petition for certiorari, claiming that the property subject of execution/demolition involved only a 6,834-square-meter land and, therefore, the Order dated October 28, 1994 ordering the subdivision of Lot 427-D consisting of 1,615 square meters, and the April 14, 1998 writ of demolition (issued on motion of private respondents) were issued with grave abuse of discretion as a piece of property not litigated in Civil Case No. CEB-R-14495 was included therein.

The Court of Appeals denied.

Thus, the instant petition which must necessarily fail.

The Court finds no error committed by the Court of Appeals in rendering the assailed decision. Petitioners continue to contend that the disputed portion of the subject land consisting 1,615 square meters of the disputed lot cannot be included in the execution because it was not involved in the previous litigation. The Court is not impressed. Petitioners ought to be reminded that ownership of the subject portion of the disputed land had already been settled in Civil Case No. CEB-R-14495 when the trial court denied petitioners' third party claim.

Moreover, petitioners having entered into a Memorandum of Agreement regarding the partition of the subject portion of the disputed land are now estopped from assailing the validity of the writ of execution and demolition.

In their frantic attempt to delay the execution of the judgment adverse to them, petitioners have already filed several petitions for certiorari before this Court (G.R. No. 119431, a petition assailing the Court of Appeals' decision in CA-G.R. SP No. 35622; G.R. No. 134264, a petition for annulment of the judgment of the Court of Appeals' decision in CA-G.R. CV No. 20824; and now, the instant petition.

These acts of petitioners have frustrated and delayed the execution of a final and executory judgment, made a mockery of the judicial processes, disregarded the canons of professional ethics, and abused procedural rules to defeat the ends of a substantial justice (Millare vs. Montero, 246 SCRA 1 [1995]).

WHEREFORE, petition is denied due course.

SO ORDERED.

Very truly yours,

(Sgd.) JULIETA Y. CARREON

Clerk of Court


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