[ G.R. No. 144414. October 23, 2000]

SPS. CIPRIANO vs. ASIATRUST DEV'T. BANK

THIRD DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated OCT 23 2000.

G.R. No. 144414 (Spouses Elias and Luisa Cipriano vs. Asiatrust Development Bank.)

Petitioners assail the decision rendered by the Court of Appeals dated July 31, 2000 denying their petition for annulment of judgment.

The decision subject of the petition for annulment of judgment was rendered by the Regional Trial Court of the National Capital Judicial Region (Branch 224, Quezon City) in a civil case entitled "Asiatrust Development Bank vs. Spouses Elias and Luisa Cipriano".

In a nutshell, the controversy stemmed from a complaint for replevin with damages filed by herein respondent against petitioners before the trial court. Pursuant to the prayer in the complaint, the trial court issued a writ of replevin against petitioners involving vehicles subject of a chattel mortgage between the parties.

Following the implementation of the writ and after the lapse of the period to answer without petitioners filing any pleading, an order declaring them, then defendants, in default, was issued by the trial court upon motion of respondent-bank.

Instead of opposing the motion or seeking the lifting of the subsequent default order, petitioners filed "A Special Appearance to Question the Jurisdiction of the Court" with a prayer that summons be properly served upon them.

In response, the trial court issued an order dated May 10, 1999 directing the counsel of petitioners "to get the summons and copy of complaint for him to be able to file the Answer". As no answer was filed, respondent-bank, upon motion, was allowed to present evidence ex-parte, on the basis of which, the trial court rendered a decision dated October 29, 1999. A copy of the decision was received by petitioners on November 16, 1999.

Thereafter, on January 27, 2000, petitioners filed a petition for annulment of judgment before the Court of Appeals which as earlier stated, was dismissed by the appellate court.

It is the assertion of petitioners that the remedy annulment of judgment is proper in the premises since the trial court never acquired jurisdiction over their person. They alleged that since there was no proper service of summons, jurisdiction over then was never acquired.

Moreover, it is petitioners' contention that their failure to submit themselves to the jurisdiction of the court was a choice they deliberately made because they wanted to emphasize the need for strict compliance with the requirements of service of summons.

Furthermore, it is petitioners' view that all the other remedies available prior to the remedy under Rule 47, e.g., remedies for a new trial, relief of judgment, and appeal under Rules 37, 38, and 41 of the 1997 Rules of Civil Procedure presuppose that jurisdiction was previously acquired by the court over the person of petitioners.

Upon the other hand, respondent asserted the view that the remedy of annulment of judgment under Rule 47 is not the proper remedy for failure of petitioners to file the proper pleadings for the dismissal of the case or the lifting of the order of default. Petitioners, respondent argued, are now estopped from taking exception to the court's jurisdiction. Respondent contented that the petitioners' failure to avail of the abovementioned options is a violation of the express provisions of Rule 47 of the 1997 Rules of Civil Procedure which provides:

Section 1. Coverage - This Rule shall govern the annulment by the Court of Appeals of judgment or final orders and resolution in civil action of Regional Trial Court for which the ordinary remedies of new trial, appeal petition for relief or other appropriate remedies are no longer available through no fault of the petitioner.

x x x.

As regards the alleged improper service of summons, it is respondent's position that assuming that there indeed as defective service, petitioners' actual receipt of summons as well as actual knowledge of the proceedings cured any defect in the service of summons.

The Court of Appeals ruled in favor of respondent-bank. It dismissed the petition for annulment of judgment since it is not the proper remedy. It stated that "since the petitioners did not avail of the other aforementioned remedies through their own fault, they may no longer avail of the remedy of annulment."

Hence, the instant petition which is bereft of merit.

It is one important condition for the availment of the remedy of a petition for annulment of judgment under Rule 47 that the pleader did not fail to move for new trial, or to file a petition for relief, or to take other appropriate remedies assailing the questioned judgment or final orders through no fault attributable to him. If he failed to avail himself of those other remedies without sufficient justification, he cannot resort to the action for annulment under Rule 47, otherwise he would benefit from his own inaction or negligence.

In the instant case, the appellate court was correct when it held that by failing to pursue other remedies available to them, petitioners are now estopped from availing the remedy under Rule 47. This being the last remedy, it cannot be resorted to if the other ordinary remedies could have been availed but were not, through negligence or error of the pleader.

WHEREFORE, there being no reversible error, the petition is denied due course.

SO ORDERED.

Very truly yours,

(Sgd.) JULIETA Y. CARREON

Clerk of Court


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