Angelina De Guzman, et al. Vs. Gloria A. Chico
G.R. No. 195445. December 7, 2016

On May 24, 2006, the property was sold at a public auction of tax delinquent properties conducted by the City Government of Makati City pursuant to Sections 254 to 260 of the Local Government Code. Respondent was the winning bidder at the public auction, and the City Government of Makati executed a Certificate of Sale in her favor on even date.

Petitioners failed to redeem the property within the one-year period. Thus, on July 12, 2007, respondent filed with the RTC of Makati City an application for new certificate of title under Section 757 in relation to Section 1078 of Presidential Decree (PD) No. 1529 or the Property Registration Decree (LRC Case No. M-4992). On December 28, 2007, after hearing, the RTC ordered that the title over the property be consolidated and transferred in the name of respondent. The Register of Deeds of Makati consequently cancelled TCT No. 164900 and issued a new one, TCT No. T-224923, in favor of respondent.

The response filed an Ex Parte Petition for the Issuance of a Writ of Possession.


1.    What is a writ of possession?

A writ of possession is defined as a writ of execution employed to enforce a judgment to recover the possession of land, commanding the sheriff to enter the land and give its possession to the person entitled under the judgment.


2.    Is a certificate against forum shopping required in a petition or motion for issuance of a writ of possession?

No.

A certificate against forum shopping is not a requirement in an ex parte petition for the issuance of a writ of possession. An ex parte petition for the issuance of writ of possession is not a complaint or other initiatory pleading as contemplated in Section 5, Rule 7 of the 1997 Rules of Civil Procedure.


3.    Explain why an ex parte petition for the issuance of a writ of possession is not an initiatory pleading.

An ex parte petition is a motion, not a pleading. What distinguishes a motion from a petition or other pleading is not its form or the title given by the party executing it, but rather its purpose. A petition for the issuance of a writ of possession does not aim to initiate new litigation, but rather issues as an incident or consequence of the original registration or cadastral proceedings. As such, the requirement for a forum shopping certification is dispelled.


4.    When may a writ of possession be issued?

Based on jurisprudence, a writ of possession may be issued in the following instances: (a) land registration proceedings under Section 17 of Act No. 496, otherwise known as The Land Registration Act; (b) judicial foreclosure, provided the debtor is in possession of the mortgaged realty and no third person, not a party to the foreclosure suit, had intervened; (c) extrajudicial foreclosure of a real estate mortgage under Section 7 of Act No. 3135, as amended by Act No. 4118; and (d) in execution sales.

There is no law or jurisprudence which provides that the petition for the issuance of a writ of possession depends on the nature of the proceeding in which it is filed.


5.    Is the writ of possession warranted in this case?

Yes.

The petitioner is now the lawful registered owner of the subject property and by virtue of law, is entitled to the issuance of a Transfer Certificate of Title in her name.

The writ of possession was warranted not merely on the basis of the law, but ultimately on the right to possess as an incident of ownership. The right to possess a property merely follows the right of ownership, and it would be illogical to hold that a person having ownership of a parcel of land is barred from seeking possession. Precisely, the basis for the grant of the writ of possession in this case is respondent's ownership of the property by virtue of a tax delinquency sale in her favor, and by virtue of her absolute right of ownership arising from the expiration of the period within which to redeem the property.


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