Banaga vs. Majaducon

No appeal from an order of execution is not absolute; an ordinary appeal is a proper remedy to assail an execution order that varies the final judgment or requires factual review, and a waiver of an action for future fraud is void.

Biblia T. Banaga and Candelario S. Damalerio were the opposing parties in an action for redemption of a parcel of land in General Santos City. The land had been subdivided into, among others, Lot 2-G-1, retained by Banaga, and Lot 2-G-2, which Damalerio sought to recover. A final judgment in G.R. No. 127941, affirming the Court of Appeals, directed the Register of Deeds to issue certificates of title to Damalerio and the trial court to issue a writ of execution and a writ of possession over the property. The present controversy concerns the execution of that final judgment and the boundary between the two adjacent lots.

Biblia T. Banaga and Candelario S. Damalerio were the opposing parties in an action for redemption of a parcel of land in General Santos City. The property had originally formed part of a bigger parcel that was subdivided sometime in the 1960s into, among others, Lot 2-G-1, which Banaga retained, and Lot 2-G-2, which Damalerio sought to recover. After the final judgment in G.R. No. 127941, the trial court issued a writ of execution and a writ of possession on May 10, 1999, and Damalerio was placed in possession of Lot 2-G-2, which he fenced with galvanized iron sheets.

Controversy arose when Damalerio moved for a special order of demolition of a structure alleged to have been erected within Lot 2-G-2. Banaga objected, claiming that the structure stood within Lot 2-G-1, the adjacent property she retained and still owned. Because the two lots had previously been part of a larger parcel, the trial court directed the parties to conduct a joint survey. The surveyors submitted conflicting reports, prompting Banaga and Damalerio to jointly manifest that a relocation survey be conducted by the DENR survey team; they agreed before the trial court to abide by and honor the team’s findings and recommendations.

Pursuant to the trial court’s order, Engr. Gerardo Dida of the DENR conducted a relocation survey on January 13 and 14, 2000. His report indicated that Lot 2-G-1 had encroached on Damalerio’s Lot 2-G-2 by some 136 square meters. On March 13, 2000, Banaga filed an Urgent Omnibus Motion for the conduct of a verification survey, alleging that the survey was incomplete and praying that a verification survey be conducted before Engr. Dida testified on the report. Without ruling on the motion, the trial court proceeded ex-parte on March 30, 2000 in taking Engr. Dida’s testimony and directed both parties to submit their respective memoranda.

The trial court issued its first assailed order on August 4, 2000, approving Engr. Dida’s report. Banaga filed a notice of appeal from that order, but the trial court denied it in its second assailed order dated October 2, 2000. Her motion for reconsideration was denied in the third assailed order dated February 9, 2001. Banaga then instituted a special civil action for certiorari, prohibition and mandamus with the Court of Appeals, seeking nullification of the orders and approval of her notice of appeal.

Banaga’s objections to the survey report centered on her position that it would alter the present boundaries and result in awarding Damalerio a portion of Lot 2-G-1. She stressed that the survey was inadequate because it was limited to properties registered in Damalerio’s name and did not indicate the relative positions of the corners of other adjacent lots in relation to Lot 2-G-2. According to her, the relocation would reposition Lot 2-G-2 eastward by a few meters, causing its eastern boundaries to overlap Lot 2-G-1 and either diminishing Lot 2-G-1 or moving it eastward to occupy the adjoining street. She also raised allegations of fraud involving alterations in the technical descriptions used as basis of the survey and discrepancies in lot data computations compared with DENR records. The trial court nevertheless found the survey report accurate despite her objections.

• Grave Abuse of Discretion and Denial of Appeal: Petitioner argued that the Court of Appeals seriously erred in ruling that the trial judge did not commit grave abuse of discretion in issuing the challenged August 4, 2000 Order and in denying due course to her petition and upholding the trial court’s denial of her notice of appeal. She maintained that the trial court had the ministerial duty to approve a notice of appeal duly filed on time and to transmit the records to the appellate court.
• Variation of Final Judgment: Petitioner maintained that the August 4, 2000 Order varied the terms of the final judgment in G.R. No. 127941, because the survey report would alter the boundaries and award a portion of Lot 2-G-1 to private respondent; the matter required factual review and ordinary appeal.
• Acquiescence and Estoppel: Petitioner argued that the Court of Appeals erred in holding that she had acquiesced to the execution of the assailed Order and was estopped from assailing it.
• Survey Inaccuracy and Fraud: Petitioner alleged that the survey was incomplete, limited to private respondent’s registered properties, and did not indicate the relative positions of adjacent lots; the relocation would overlap Lot 2-G-1. She also raised fraud involving alterations in technical descriptions and lot data computations used as basis for the survey.

• Sole Remedy of Certiorari: Private respondent contended that with the adoption of the 1997 Rules of Civil Procedure, only the remedy of a special civil action of certiorari is available to a party prejudiced by an improper or irregular execution.
• Technical Dismissal under Section 11, Rule 13: Private respondent contended that the petition should be dismissed for violating Section 11, Rule 13 of the Rules of Court, claiming that petitioner’s affidavit of service was false because the distance between the offices of the opposing counsels was only about 15 meters.

• Appealability of Execution Order: Whether the trial court correctly denied petitioner’s notice of appeal notwithstanding her allegation that the August 4, 2000 Order varied the terms of the final judgment in G.R. No. 127941.
• Grave Abuse of Discretion: Whether the Court of Appeals erred in ruling that the trial court did not commit grave abuse of discretion in issuing the challenged order and in upholding the denial of petitioner’s notice of appeal.
• Acquiescence, Estoppel, and Waiver: Whether the Court of Appeals erred in holding that petitioner acquiesced to the execution of the assailed order and was estopped from assailing it, and whether her waiver to abide by the survey findings covered allegations of fraud.
• Motion for Reconsideration: Whether petitioner should have first moved for reconsideration or clarification of the August 4, 2000 Order before filing a notice of appeal.
• Technical Dismissal: Whether the petition should be dismissed for violation of Section 11, Rule 13 of the Rules of Court.

• Appealability of Execution Order: Yes. The general rule that no appeal lies from an order of execution is not absolute; an ordinary appeal is a proper remedy where the execution order varies the final judgment or where a factual review of the execution is necessary. The order approving the survey report cannot be regarded as final and unappealable.
• Grave Abuse of Discretion: Yes. The Court of Appeals erred in ruling that the trial court did not commit grave abuse of discretion in dismissing petitioner’s notice of appeal.
• Acquiescence, Estoppel, and Waiver: No. The waiver to abide by the survey findings did not include future fraud; any waiver of an action for future fraud is void. Petitioner was not barred from assailing the order on grounds of fraud.
• Motion for Reconsideration: No. A motion for reconsideration is not required before appealing a judgment or final order; it would have been repetitious and useless.
• Technical Dismissal: No. Dismissal on a mere technicality would ignore the constitutional guarantee against deprivation of property without due process; the proximity of counsel’s offices was not clearly established, and the Rules are liberally construed.

• Appealability of Execution Order: Section 1(f), Rule 41 generally prohibits appeal from an order of execution. However, even before the 1997 Rules, the rule was not absolute. Limpin vs. Intermediate Appellate Court enumerated exceptional circumstances: (1) the writ of execution varies the judgment; (2) there has been a change in the situation of the parties making execution inequitable or unjust; (3) execution is sought against property exempt from execution; (4) the controversy has never been subject to the judgment of the court; (5) the terms of the judgment are not clear and there remains room for interpretation; or (6) the writ of execution has been improvidently issued, or is defective in substance, or is issued against the wrong party, or the judgment debt has been paid or otherwise satisfied, or the writ was issued without authority. In these exceptional circumstances, justice and equity require a mode to elevate the question to a higher court, either by appeal or by a special civil action of certiorari, prohibition, or mandamus. The Court found no justification to abandon this pronouncement insofar as it recognizes ordinary appeal as a proper remedy where a factual review of the manner of execution is called for to determine whether the challenged writ or order varied the tenor of the final judgment. Here, petitioner objected that the survey report would alter the boundaries and award a portion of Lot 2-G-1 to private respondent. The report relocated Lot 2-G-2 eastward, overlapping Lot 2-G-1; the correctness of the survey findings and their effect on adjacent lots were factual questions. The technical findings of the surveyor and the trial court’s appreciation thereof had to undergo appellate scrutiny. The order adopting and approving the survey report could not be regarded as final and unappealable. Allegations of fraud involving alterations in technical descriptions could be resolved only by ordinary appeal. Thus, ordinary appeal was more appropriate than certiorari.
• Grave Abuse of Discretion: Because ordinary appeal was the proper remedy and the trial court denied petitioner’s notice of appeal, the Court of Appeals erred in ruling that no grave abuse of discretion was committed. The trial court committed grave abuse of discretion in dismissing the notice of appeal.
• Acquiescence, Estoppel, and Waiver: Petitioner bound herself to abide by the findings of the survey team, but the waiver did not include future fraud. Under Civil Code Article 1171, responsibility arising from fraud is demandable in all obligations, and any waiver of an action for future fraud is void. Petitioner raised allegations of discrepancy and alterations in lot data computations compared to DENR records; the waiver could not cover fraud.
• Motion for Reconsideration: The Court of Appeals erred in ruling that petitioner should have first sought clarification or moved for reconsideration of the August 4, 2000 Order. From that order, the trial court found the survey report accurate despite petitioner’s allegation that it was incomplete and not based on authentic DENR records. Petitioner had already raised her objections in her Urgent Omnibus Motion and extensively discussed them in her memorandum. The trial court’s failure to rule on the motion and its approval of the survey report indicated that it found petitioner’s arguments without merit. A motion for reconsideration or clarification would have been repetitious and useless. Moreover, a motion for reconsideration is not required before appealing a judgment or final order.
• Technical Dismissal: Private respondent contended that the petition violated Section 11, Rule 13 because of an alleged false affidavit of service. In adjudging the plausibility of an explanation, a court considers the importance of the subject matter or issues involved and the prima facie merit of the pleading sought to be expunged. The basis for allowing appellate review was to afford petitioner the opportunity to prove her claim that she bore the risk of being illegally deprived of property belonging to her. Dismissal on a mere technicality would ignore the constitutional provision against depriving a person of property without due process of law. The proximity between the offices of opposing counsel had not been clearly established. The Rules are liberally construed to promote a just, speedy, and inexpensive disposition of every action and proceeding.

• No appeal from an order of execution is not absolute — Section 1(f), Rule 41 generally bars appeal from an order of execution, but the rule is not absolute. Under Limpin vs. Intermediate Appellate Court, exceptional circumstances allow a party aggrieved by improper or irregular execution to elevate the matter: (1) the writ varies the judgment; (2) a change in the situation of the parties makes execution inequitable or unjust; (3) execution is sought against exempt property; (4) the controversy was never subject to the judgment; (5) the terms of the judgment are not clear and remain open to interpretation; or (6) the writ was improvidently issued, defective in substance, issued against the wrong party, the judgment debt was paid or satisfied, or the writ was issued without authority. In such cases, the remedy may be appeal or a special civil action of certiorari, prohibition, or mandamus. The Court applied this doctrine to hold that the order approving the survey report was not final and unappealable because it varied the final judgment and required factual review.
• Certiorari is not the sole remedy for improper execution — A special civil action for certiorari is not a mode of appeal; it tests jurisdiction or grave abuse of discretion, not errors of fact or law. Where the aggrieved party raises factual issues on whether the execution order varied the final judgment, ordinary appeal is the more proper and adequate remedy. The Court thus rejected private respondent’s position that certiorari was the exclusive remedy.
• Motion for reconsideration not required before appeal — A motion for reconsideration is not a condition precedent to appealing a judgment or final order. The Court held that requiring one in this case would be useless and repetitious because petitioner had already raised her objections in her Urgent Omnibus Motion and memorandum, and the trial court had effectively rejected them.
• Waiver of future fraud is void — Under Civil Code Article 1171, responsibility arising from fraud is demandable in all obligations, and any waiver of an action for future fraud is void. Petitioner’s agreement to abide by the survey team’s findings did not bar her from alleging fraud in the survey, such as alterations in technical descriptions and discrepancies in lot data computations.
• Liberal construction of the Rules — Rule 1, Section 6 of the Rules of Court requires liberal construction to promote a just, speedy, and inexpensive disposition of every action. The Court refused to dismiss the petition on an alleged technical defect in the affidavit of service, especially where the subject matter was important, the pleading had prima facie merit, and dismissal would offend the constitutional guarantee against deprivation of property without due process.

• "Even prior to the promulgation of the 1997 Rules of Civil Procedure, the rule that no appeal lies from an order or writ directing the execution of a final judgment, for otherwise a case will not attain finality, is not absolute since a party aggrieved by an improper or irregular execution of a judgment is not without a remedy." — This states the ratio that the general proscription against appealing execution orders is not absolute.
• "To rule that a special civil action for certiorari constitutes the sole and exclusive remedy to assail a writ or order of execution would unduly restrict the remedy available to a party prejudiced by an improper or illegal execution." — This rejects private respondent’s theory that certiorari is the only remedy for improper execution.
• "The trial court’s order adopting and approving the survey report cannot be regarded as final and unappealable." — This applies the exception to the order challenged in the case.
• "While it is correct that petitioner bound herself to abide by the findings of the survey team, the waiver does not include future fraud. Responsibility arising from fraud is demandable in all obligations. Any waiver of an action for future fraud is void." — This articulates the waiver doctrine applied to petitioner’s fraud allegations.

• Limpin vs. Intermediate Appellate Court, G.R. No. L-70987, January 30, 1987, 147 SCRA 516 — The controlling precedent enumerating the exceptional circumstances in which a party may elevate an improper or irregular execution to a higher court, and recognizing appeal or special civil action as available remedies.
• Paulino vs. Court of Appeals, G.R. No. 110271, February 28, 1994, 230 SCRA 475; Reburiano vs. Court of Appeals, 361 Phil. 294 (1999); Baluyut vs. Guiao, 373 Phil. 1013 (1999) — Cited to show that the Limpin pronouncement was reiterated even after the adoption of the 1997 Rules of Civil Procedure.
• Yasuda vs. Court of Appeals, 386 Phil. 594, 602 (2000) — Cited for the rule that a special civil action for certiorari is not a mode of appeal and that its issue is whether the lower court acted without or in excess of jurisdiction or with grave abuse of discretion.
• Solar Team Entertainment, Inc. vs. Ricafort, 355 Phil. 404, 414 (1998) — Cited for the factors a court considers in judging the plausibility of an explanation for service, including the importance of the subject matter and the prima facie merit of the pleading sought to be expunged.
• Toledo-Banaga vs. Court of Appeals, 361 Phil. 1006 (1999) — The prior final judgment in G.R. No. 127941, which affirmed the Court of Appeals decision directing the issuance of certificates of title to Damalerio and the issuance of writs of execution and possession.

• Section 1(f), Rule 41, Rules of Court — Provides that no appeal may be taken from an order of execution. The Court held the proscription is not absolute and does not bar an ordinary appeal where the execution order varies the final judgment or where factual review of the execution is required.
• Civil Code, Article 1171 — States that responsibility arising from fraud is demandable in all obligations and that any waiver of an action for future fraud is void. Applied to hold that petitioner’s waiver to abide by the survey findings did not cover her allegations of fraud.
• Section 11, Rule 13, Rules of Court — Cited by private respondent as the basis for dismissing the petition because of an alleged false affidavit of service. The Court declined to dismiss on this technical ground, considering the importance of the subject matter and the prima facie merit of the petition.
• Rule 1, Section 6, Rules of Court — Requires the Rules to be liberally construed to promote a just, speedy, and inexpensive disposition of every action and proceeding. Applied to avoid dismissal on a mere technicality.
• Constitutional due process guarantee — The Court invoked the constitutional provision against depriving a person of property without due process of law to justify allowing appellate review of the trial court’s order and avoiding dismissal on technical grounds.
• Rule 45, 1997 Rules of Civil Procedure — The petition for review on certiorari was filed under this Rule; the Court granted it and reversed the Court of Appeals.

Leonardo A. Quisumbing (Chairperson), Antonio T. Carpio, Conchita Carpio Morales, and Presbitero J. Velasco, Jr.