Republic of the PhilippinesSUPREME COURTManilaFIRST DIVISIONG.R. No. 70987 September 29, 1988GREGORIO Y. LIMPIN, and ROGELIO M. SARMIENTO,petitioners,vs.INTERMEDIATE APPELLATE COURT and GUILLERMO PONCE,respondents.Danilo A. Basa for petitioner Gregorio Y. Limpin, Jr.Angara, Abello, Concepcion, Regala & Cruz Law Offices for petitioner Rogelio Sarmiento.Sycip, Salazar, Hernandez & Gatmaitan Law Offices and Eugenio C. Lindo for respondent Guillermo Ponce.NARVASA,J.:Once again the parties are before this Court; this time, for a determination of whether or not theequity of redemptionrecognized in favor of petitioner Rogelio M. Sarmiento in this Court's judgment promulgated on January 30, 1987, still subsists and may be exercised, more than a year after that judgment had become final and executory.The proceedings concern two (2) lots, then covered by TCTs Nos. 92836 and 92837, which, together with two (2) others, were originally mortgaged in 1973 to herein private respondent Ponce by their former owners, the Spouses Jose and Marcelina Aquino. These two lots were afterwards sold in 1978 by the same Aquino Spouses to Butuan Bay Wood Export Corporation. Against this corporation herein petitioner Limpin obtained a money judgment in 1979; and to satisfy the judgment, the two lots were levied on and sold at public auction in 1980, Limpin being the highest bidder. Limpin later sold the lots to his co-petitioner, Sarmiento.Earlier however or a day before levy was made on the two lots in execution of the judgment against Butuan Bay Wood Export Corporation. Ponce had initiated judicial proceedings for the foreclosure of the mortgage over said two (2) lots (together with the two (2) others mortgaged to him Judgment was rendered in his favor and became final; and at the ensuing foreclosure sale, the lots were acquired by Ponce himself as highest bidder. Ponce then moved for confirmation of the foreclosure sale, but the Court confirmed the sale of only two lots, refusing to do so as regards the two which had been subject of the execution sale in Limpin's favor (i.e., those covered TCTs Nos. 92836 and 92837).It was to resolve the resulting dispute that Ponce instituted a special civil action in the Intermediate Appellate Court, impleading Limpin and Sarmiento a indispensable parties respondents. That Court rendered judgment on February 28, 1985 in Ponce's favor; Limpin and Sarmiento appealed; this Court denied their appeal.The judgment of this Court of January 30, 1987 dismissed Sarmiento's and Limpin's petition for review on certiorari of the Appellate Court's decision of February 28, 1985. It in effect affirmed the latter's decision whichinter aliaordered the Trial Court "to confirm the sale (of the lots formerly covered by TCT Nos. 92836 and 92837) and issue a writ of possession to ... (Guillermo Ponce) with respect to the aforesaid lots,subject to the equity of redemption of the respondent Rogelio V. Sarmiento1Applying the doctrine laid down inSantiago v. Dionisio, a 1953 decision of this Court2the Intermediate Appellate Court's decision declared that "the sale to Ponce, as the highest bidder in the foreclosure sale of the two lots in question should have been confirmed,subject to Limpin's (and now Sarmiento's) equity of redemption."This Court's aforesaid judgment also clearly and categorically sustained the exercise by the Appellate Court ofjurisdiction over the personsof Rogelio M. Sarmiento and Gregorio Limpin.3There can thus be no question that the petitoners herein, said Rogelio Sarmiento and Gregorio Limpin, were affected and are bound by the decision of the Intermediate Appellate Court, and that of this Court affirming it.Rogelio M. Sarmiento, particularly, was aware that the Trial Court had the ministerial duty to execute the Appellate Court's decision, i.e., to confirm the sale and issue a writ of possession as regards the aforesaid lots, subject to the equity of redemption explicitly recognized in his favor in the decisions mentioned. He knew that he had theprerogative to exercise his equity of redemption, if not from the moment that the judgment of this Court became final and executory,4at least until the Courta quo, presided over by Hon. Antonio Solano, subsequently confirmed the sale and issued a writ of possession in favor of Guillermo Ponce in June, 1987.5He did not try to exercise that right before, at or about the time of the confirmation of the foreclosure sale by Judge Solano. Instead, he instituted no less than two (2) actions in the same Regional Trial Court which were assigned to another branch, presided over by Hon. Teodoro Beltran- attempting to relitigate precisely the same issues which this Court and the Intermediate Appellate Court had already passed upon and resolved adversely to him. For doing so for trifling with and abusing the processes of the courts, and thus unwarrantedly delaying execution of the final and executory judgment against him he and his counsel were both found guilty of contempt and correspondingly punished by this Court, by Resolution dated May 5, 1988. The same resolution also decreed the dismissal of the complaints in both cases and the nullification and setting aside of the restraining or injunctive orders of Judge Beltran.It was not until March 11, 1988-nine months or so after entry of the judgment recognizing his equity of redemption as successor-in-interest of the original mortgagors that Sarmiento finally be stirred himself to attempt to exercise his unforeclosed equity of redemption. On that day he filed a motion with the Court presided over by Hon. Judge Antonio Solano, manifesting that he would exercise the right and asked the Court to fix the redemption price.6The Court opined that "this should be the subject of the agreement between Ponce and Sarmiento.7Sarmiento then wrote to Ponce on March 23, 1988 offering "P 2.6 million as redemption price for the two lots originally covered by TCTs Nos. 92836 and 92837, now 307100 and 307124.8Ponce's answer, dated March 25, 1988, rejected the offer said averred "that the period within which ... (Sarmiento) could have exercised such right ... (had) lapsed.9Sarmiento reacted by filing a motion with the Solano Court, dated March 29, 1988, asking it to "fix the redemption price ... and that the implementation of the writ of possession be provisionally deferred.10An opposition was promptly filed by Ponce under date of May 4, 198811in which he argued that "Sarmiento's right to exercise his equity of redemption over those lots had long expired," the opportunity to exercise it having presented itself but not availed of "(i) after ... default in the performance of the conditions of the mortgage and (ii) before the Sheriffs sale of the property and the judicial confirmation thereof." According to Ponce, "from October 17, 1982, ... (when) Sarmiento's predecessors-in-interest defaulted in their obligations over the mortgaged properties, up to June 17, 1987, when this ... (Trial) Court confirmed the auction sale of those properties, Sarmiento could (and should) have exercised his 'equity of redemption.'" Judge Solano did not share this view, and ruled accordingly.12The issue has been brought to this Court for resolution by Ponce's "Motion for Clarification" dated May 27, 1988 and "Supplemental Motion ..." dated June 13, 1988, as to which Sarmiento has submitted a Comment dated June 17,1988. To the comment a reply has been presented by Ponce under date of August 3, 1988.Ponce states13that the term,equity of redemption, means "the right of the mortgagor to redeem the mortgaged property after his default in the performance of the conditions of the mortgage but before the sale of the property or the judicial) confirmation of the (Sheriffs) sale," citingTop Rate International Services, Inc. v. IAC142 SCRA 473 [1976], or "the right to redeem mortgaged property by paying the amount ordered by the court within a period of ninety days, or, even thereafter but before the confirmation of the sale, invokingSun Life Assurance Co. of Canada v. Diez, 52 Phil. 275 [1928].14On this premise, he postulates that "from October 17, 1982, the date Sarmiento's predecessors-in-interest defaulted in their obligations over the mortgaged properties, up to June 17, 1987, when the lower court confirmed the auction sale of those properties, Sarmiento could have exercised his 'equity of redemption."' Not having done so within that time, his equity of redemption had been extinguished; indeed, by opting to file "new suits against Ponce ... seeking to annul Ponce's titles over those properties" instead of redeeming the same, he had "waived his equity of redemption (assuming such right existed at the time the suits were commenced)."It is Sarmiento's position, on the other hand,15that the "17 June 1987 confirmation of the sale of the two lots could not have cut off ... (his) equity of redemption;" in fact, "Ponce himself, in his 'Urgent Motion' dated 1 June 1987, precisely prayed for the issuance of a writ of possession'subject to the equity of redemption of Rogelio M. Sarmiento' thereby recognizing Sarmiento's equity of redemption beyond confirmation date,"16He also argues that he had not been informed of the time when his right of redemption would be cut-off,17because he "never received a copy of any Motion for Confirmation, much less notice of hearing thereon in violation of his right to due process;" that to hold otherwise would "render nugatory the decision of the Court of Appeals and this ... Court on the issue;" and that he is entitled to a reasonable time, e.g., a year, for the exercise of his equity of redemption.18Theequity of redemptionis, to be sure, different from and should not be confused with theright of redemption.19Theright of redemptionin relation to a mortgage-understood in the sense of a prerogative to re-acquire mortgaged property after registration of the foreclosure sale- exists only in the case of theextrajudicialforeclosure of the mortgage. No such right is recognized in ajudicialforeclosure except only where the mortgagee is the Philippine National Bank or a bank or banking institution.Where a mortgage isforeclosed extra-judicially, Act 3135 grants to the mortgagor the right of redemption within one (1) year from the registration of the sheriffs certificate of foreclosure sale.20Where the foreclosure isjudicially effected, however, no equivalent right of redemption exists. The law21declares that a judicial foreclosure sale, "when confirmed by an order of the court, ... shall operate to divest the rights of all the parties to the action and to vest their rights in the purchaser,subject to such rights of redemption as may be allowed by law.22Such rights exceptionally "allowed by law" (i.e., even after confirmation by an order of the court) are those granted by the charter of the Philippine National Bank (Acts No. 2747 and 2938), and the General Banking Act (R.A. 337).23These laws confer on the mortgagor, his successors in interest or any judgment creditor of the mortgagor, the right to redeem the property sold on foreclosure-after confirmation by the court of the foreclosure sale-which right may be exercised within a period of one (1) year, counted from the date of registration of the certificate of sale in the Registry of Property.But, to repeat, no such right of redemption exists in case of judicial foreclosure of a mortgage if the mortgagee is not the PNB or a bank or banking institution. In such a case, the foreclosure sale, "when confirmed by an order of the court. ... shall operate to divest the rights of all the parties to the action and to vest their rights in the purchaser." There then exists only what is known as theequity of redemption. This is simply the right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the secured debt within the 90-day period after the judgment becomes final, in accordance with Rule 68, or even after the foreclosure sale but prior to its confirmation. Section 2, Rule 68 provides that... If upon the trial ... the court shag find the facts set forth in the complaint to be true, it shall ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and costs, and shall render judgment for the sum so found due and order the same to be paid into court within a period of not less thanninety (90) days from the date of the service of such order, and that in default of such payment the property be sold to realize the mortgage debt and Costs.24This is the mortgagor'sequity (not right) of redemptionwhich, as above stated, may be exercised by him even beyond the 90-day period "from the date of service of the order,' and even after the foreclosure sale itself, provided it be before the order of confirmation of the sale.25After such order of confirmation, no redemption can be effected any longer.It is this same equity of redemption that is conferred by law on the mortgagor's successors-in-interest, or third persons acquiring rights over the mortgaged property subsequent, and therefore subordinate, to the mortgagee's lien.26If these subsequent or junior lienholders be not joined in the foreclosure action, the judgment in the mortgagor's favor is ineffective as to them, of course. In that case, they retain what is known as the"unforeclosed equity of redemption,"and a separate foreclosure proceeding should be brought to require them to redeem from the first mortgagee, or the party acquiring title to the mortgaged property at the foreclosure sale, within 90 days,27under penalty of losing that prerogative to redeem. In the case at bar, however, there is no occasion to speak of any "unforeclosed equity of redemption' in Sarmiento's favor since he was properly impleaded in the judicial proceeding where his and Ponce's rights over the mortgaged property were ventilated and specifically adjudicated.Under the circumstances obtaining in this case, the plain intendment of the Intermediate Appellate Court was to give to Sarmiento, not the unforeclosed equity of redemption pertaining to a stranger to the foreclosure suit, but the sameequity of redemptionpossessed by the mortgagor himself. The judgment cannot be construed as contemplating or requiring the institution of a separate suit by Ponce to compel Sarmiento to exercise his unforeclosed equity of redemption, or as granting Sarmiento the option to redeem at any time that he pleases, subject only to prescription. This would give rise to that multiplicity of proceedings which the law eschews. The judgment plainly intended that Sarmiento exercise his option to redeem, assuccessor of the mortgagor.Upon the facts on record, Sarmiento cannot be heard to complain of denial of due process for alleged lack of notice of any motion or hearing for confirmation of sale. The Decision of the Intermediate Appellate Court which he and his predecessor, Limpin, had appealed to this Courtspecifically orderedthe Trial Court to confirm28the judicial foreclosure sale in favor of Ponce over the two lots, in these terms.29WHEREFORE, the orders dated October 16,1983 and December 19,1983 of the respondent court, so far as they deny the confirmation of the sale of the lots formerly covered by TCT Nos. 92836 and 92837, are SET ASIDE, and the respondent court is hereby ORDERED to confirm the sale and issue a writ of possession to the petitioner with respect to the aforesaid lots, subject to the equity of redemption of the respondent Rogelio V. Sarmiento. Without costs.Given the fact that said appealed orders of the Trial Court had been issued upon motion for confirmation earlier made by Ponce-which was duly served and heard-the aforecited Decision of the Intermediate Appellate Court can be construed in no wise than as a peremptory command to the Trial Court to confirm the sale as directed,motu proprio, and without the need of any further motion or other action on the part of Ponce. The rejection by this Court of Sarmiento's and Limpin's appeal in its own Decision of January 30, 1987, which imported nothing less than a total affirmance of the Decision of the Appellate Court, should therefore have sufficiently alerted Sarmiento that confirmation could come at any time after this Court's Decision became final, with or without any action from Ponce. He cannot, in the circumstances, claim unfair surprise. He should, upon being notified of this Court's Decision, have taken steps to redeem the properties in question or, at the very least, served the Trial Court and Ponce with notice of his intention to exercise his equity of redemption. There was certainly time enough to do this the order confirming the foreclosure sale issuing only on June 17, 1987had he not occupied himself with the fruitless maneuverings to re-litigate the issues already recounted. Indeed, had he made an attempt to redeem, even belatedly but within a reasonable period of time after learning of the order of confirmation (the record shows he did learn of it within three [3) days after its issuance),30he might perhaps have given the Court some reason to consider his bid on equitable grounds. He did not. He let nine (9) months pass, to repeat, in carrying out improper (and contumacious stratagems to negate the judgments against him, before making any such move.Neither can Sarmiento acceptably claim that Ponce, by moving for a writ of possession subject to his (Sarmiento's) equity of redemption, recognized the existence and enforceability of that prerogativebeyondthe prescribed cut-off date of confirmation of the sale. Such an interpretation of the motion is totally unwarranted, given the fact that said motion was made at a time (June 1, 1987) when there was as yet no order confirming the sale and, since Sarmiento's equity of redemption then still unquestionably existed, there was hardly occasion or for that matter, any reason as far as Ponce was concerned, to provide against its lapsing. Moreover, assuming for the sake of argument that a resolutory period fixed by law may be extended by act of the party in whose favor its expiration would operate, that act must bespeak a clear and unequivocal intent to grant such an extension. No such clear grant can be inferred from the terms of Ponce's motion, which can, and in fact should be, read as a mere affirmation that there existed at the time an equity of redemption in Sarmiento's favor.WHEREFORE, the Court hereby rules that the equity of redemption claimed and invoked by Rogelio M. Sarmiento over the properties originally covered by Transfer Certificates of Title Nos. 92836 and 92837 (now by TCTs Numbered 307100 and 307124), Registry of Deeds of Quezon City, subject of this case, lapsed and ceased to exist without having been properly exercised, on June 17, 1987, with the issuance by the Trial Court of the Order confirming the sheriffs sale (on judicial foreclosure) of said properties in favor of Guillermo Ponce.Cruz, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

Republic of the PhilippinesSUPREME COURTManilaTHIRD DIVISIONG.R. NO. 156542 June 26, 2007CANDELARIA Q. DAYOT,Petitioner,vs.SHELL CHEMICAL COMPANY, (PHILS.), INC.,Respondent.D E C I S I O NAUSTRIA-MARTINEZ,J.:Assailed in the Petition for Review onCertioraribefore the Court is the July 30, 2002 Decision1of the Court of Appeals (CA) in CA-G.R. SP. No. 70696 nullifying the January 8, 2002 Amended Order,2January 10, 2002 Alias Writ of Possession,3January 10, 2002 Notice to Vacate4and April 12, 2002 Order,5which were all issued by the Regional Trial Court (RTC) of Iloilo, Branch 29; and the CA December 23, 2002 Resolution6denying herein petitioner's Motion for Reconsideration.The facts of the case are as follows:On April 20, 1982, Panay Railways, Inc. (PRI) executed a real estate mortgage contract over six parcels of land located in Lapuz District, Iloilo City in favor of Traders Royal Bank (TRB) for purposes of securing its loan obligations to TRB.7The subject properties are denominated as follows:Lot No. 3834, covered by Transfer Certificate of Title (TCT) No. T-45727;Lot No. 1-A, covered by TCT No. T-45728; andLot Nos. 6153, 6156, 6158 and 6159, all covered by TCT No. T-58200. PRI failed to pay its loan. As a consequence, the mortgaged properties were foreclosed and sold at public auction to TRB as the highest bidder. PRI failed to redeem the foreclosed properties. Hence, TRB consolidated its ownership over the subject parcels of land and, thereafter, certificates of title were issued in its name, to wit: TCT No. T-84233, which canceled TCT No. T-45728; TCT No. T-84234, which canceled TCT No. T-45727; and TCT Nos. T-84235, T-84236, T-84237 and T-84238, all of which canceled TCT No. T-58200.Thereafter, TRB filed a Petition for Writ of Possession with the RTC of Iloilo City, docketed as LRC CAD. REC. NO. 1 ILOILO CITY and LRC CAD. REC. NO. 9616 ILOILO CITY.8In its Order dated October 22, 1990, the trial court granted the petition and ordered the issuance of a writ of possession in favor of TRB.9However, the writ was not fully implemented.On November 20, 1990, TRB sold to spouses Edmundo and Candelaria Dayot (Spouses Dayot), by virtue of a Deed of Absolute Sale, five parcels of land which are portions of Lots 3834, 1-A and 6153.Subsequently, on February 5, 1991, Candelaria Dayot (petitioner) filed a Supplemental Pleading before the RTC of Iloilo City, praying that she, being the transferee of all the rights and interests of TRB over the parcels of land subject of the Petition for Writ of Possession filed by the latter, be substituted as the new petitioner in LRC CAD. REC. NOS. 1 and 9616, and that an alias writ of possession be issued in her favor. The trial court granted petitioner's prayer in its Order dated March 12, 1991.10On April 1, 1991, the RTC issued an Alias Writ of Possession in favor of herein petitioner.11On August 24, 1994, the spouses Dayot filed with the RTC of Iloilo City, a complaint for Recovery of Ownership and Possession, Annulment of Documents, Cancellation of Titles, Reconveyance and Damages against TRB, Petron Corporation (Petron) and herein respondent Shell Chemical Company (Phil.), Inc. (Shell), praying that Shell be directed to vacate the portion of Lot No. 6153 which it actually possesses and for both Petron and Shell to surrender ownership and possession of portions of parcels of lands covered separately by TCT Nos. T-47484 and T-94116. The case was docketed as Civil Case No. 21957.12On August 21, 1997, while Civil Case No. 21957 was pending resolution, herein petitioner filed in LRC CAD. REC. NOS. 1 and 9616 an Amended Supplemental Motion for the Issuance of Writ of Possession, praying that Shell be ejected from the portion of Lot 6153 which it actually possesses.Shell lodged an Opposition to petitioner's Amended Supplemental Motion arguing, among others, that petitioner is guilty of forum shopping as it seeks the same relief being sought in Civil Case No. 21957 and that the parcels of land sold to petitioner do not include the portion of Lot 6153 being possessed by Shell.13On May 7, 1999, the RTC of Iloilo, Branch 30 issued an Order denying herein petitioner's Motion for the Issuance of a Writ of Possession, insofar as Shell is concerned.14Despite the issuance of the above-mentioned Order, petitioner filed two successive motions praying for the issuance of an alias writ of possession. Shell opposed these motions.Subsequently, the petition for the issuance of a writ of possession was re-raffled to Branch 29 of the RTC of Iloilo, as the presiding judge of Branch 30 inhibited himself from hearing the case.On January 8, 2002, Branch 29 promulgated an Amended Order, the dispositive portion of which reads:Wherefore, let an Alias Writ of Possession issue on the affected portions of Lots 3834, 1-A and 6153, all situated in the City of Iloilo, with a total land area of 14,940 sq. meters occupied by Shell and 17,000 sq. meters occupied by Petron and to place and install petitioner Candelaria Dayot in possession thereof.Mr. Redentor Rodriguez, Sheriff IV of this Court is hereby directed to implement this order.SO ORDERED.15On January 10, 2002, the Branch Clerk of Court of RTC Iloilo, Branch 29, issued an Alias Writ of Possession.On even date, the Sheriff served upon Shell a Notice to Vacate.Thereafter, Shell and Petron moved for the reconsideration of the January 8, 2002 Order of the RTC but the trial court denied it via its Order dated April 12, 2002.Shell then filed a petition forcertiorariand prohibition with the CA praying for the nullification of the January 8, 2002 and April 12, 2002 Orders of RTC Iloilo, Branch 29, as well as the Alias Writ of Possession and Notice to Vacate both dated January 10, 2002. The petition also sought to permanently enjoin the RTC from enforcing the assailed orders and processes and from acting and conducting further proceedings in the subject case.On July 30, 2002, the CA promulgated its presently assailed Decision, the dispositive portion of which reads as follows:WHEREFORE, premises considered, the Petition is GRANTED and the questioned four (4) rulings of the court a quo are hereby declared NULL and VOID. No costs.SO ORDERED.16Petitioner's Motion for Reconsideration was denied by the CA in its Resolution dated December 23, 2002.Hence, herein petition for review oncertiorari, anchored on the following grounds:1. THAT RESPONDENT IS BARRED FROM FILING THE PETITION FOR CERTIORARI WITH THE COURT OF APPEALS, ASSAILING THE AMENDED ORDER DATED JANUARY 8, 2002 OF HON. RENE B. HONRADO, PRESIDING JUDGE, REGIONAL TRIAL COURT, ILOILO CITY, BRANCH 29, AFTER RESPONDENT LOST ITS RIGHT TO APPEAL BECAUSE A SPECIAL CIVIL ACTION FOR CERTIORARI IS NOT AND CANNOT BE A SUBSTITUTE FOR A LOST OR EXPIRED APPEAL THUS, THE DECISION PROMULGATED JULY 30, 2002 AND THE RESOLUTION PROMULGATED DECEMBER 23, 2002 OF THE HONORABLE COURT OF APPEALS WERE ISSUED CONTRARY TO PREVAILING JURISPRUDENCE AND THAT SAID COURT DECIDED A QUESTION OF SUBSTANCE NOT IN ACCORD WITH LAW AND APPLICABLE DECISIONS OF THIS HONORABLE SUPREME COURT AND THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS.2. THAT PETITIONER IS ENTITLED TO THE POSSESSION OF THE ENTIRE LOTS 3834, 1-A, 6153, 6156, 6158 AND 6159 INCLUDING THE AREA OF 14,940 SQ. METERS OCCUPIED BY RESPONDENT WHICH AREAS ARE PORTIONS OF LOTS 6153, 3834 AND 1-A, OCCUPATION THEREOF BY RESPONDENT BEING THAT OF MERE INTRUDER OR TRESSPASSER.17In her first assigned error, petitioner argues that respondent should have been barred from filing a special civil action forcertioraribefore the CA because this recourse is available only when there is no speedy and adequate remedy in the course of law. Petitioner further argues that respondent should have appealed the Amended Order of the RTC dated April 12, 2002, but it did not. Petitioner avers that respondent can no longer resort to the filing of a petition forcertioraribecause this remedy is not a substitute for a lost appeal.Anent the second assigned error, petitioner claims that she is not guilty of forum shopping, as Civil Case No. 21957 involves the issue of ownership while the present case is for the recovery of possession; and that the subject matter of the present case is different from that of Civil Case No. 21957. Even granting that the same parcels of land are involved in these cases, petitioner argues that a writ of possession can still be validly issued and implemented in consonance with the rule that proceedings incident to extra-judicial foreclosure of mortgages to resolve the possession of third-party claimants may proceed independently of the action which said claimants may bring to enforce or protect their claim of ownership over the property.Lastly, petitioner asserts that respondent's TCT No. T-47484 refers to a lot which is different from those being contested in the instant case.In its Comment, respondent contends that it did not err in resorting to the remedy of filing a petition forcertiorariwith the CA. It argues that even when appeal is available as a proper remedy, the Supreme Court will allow a writ ofcertiorariif the petition appears to be genuinely meritorious or if filed on the basis of a patent, capricious and whimsical exercise of discretion by a trial judge, or when an appeal will not promptly relieve petitioner from the injurious effects of the disputed orders; that the Amended Order of the RTC dated January 8, 2002 collaterally attacked respondent's title over the disputed property; that petitioner is not a buyer in good faith; that, as a transferee, petitioner merely acquired the rights and interests that TRB had by reason of the foreclosure of the mortgage made in its favor; that the contested Alias Writ of Execution is barred byres judicataandlitis pendentia; and that respondent has the right to possess the disputed property as it has satisfactorily shown that it is the registered owner of and has title over the subject property.The Court finds the petition bereft of merit.It bears to emphasize at the outset that the present petition for review arose by reason of the special civil action forcertiorarifiled by respondent Shell with the CA questioning the January 8, 2002 Amended Order, Alias Writ of Possession, Notice to Vacate and the April 12, 2002 Order issued by the RTC of Iloilo, Branch 29. Accordingly, any discussions on the issues raised as well as rulings by this Court in the present petition apply only insofar as the claim of respondent Shell is concerned.As to the first assigned error, it is true that as a rule whilecertiorarias a remedy may not be used as a substitute for an appeal, especially for a lost appeal, this rule should not be strictly enforced if the petition is genuinely meritorious.18It has been held that where the rigid application of the rules would frustrate substantial justice, or bar the vindication of a legitimate grievance, the courts are justified in exempting a particular case from the operation of the rules.19The Court has given due course to petitions forcertiorarialthough appeal is the proper remedy where the equities of the case warranted such action, mindful that dismissals based on technicalities are looked upon with disfavor.20In the present case, the Court finds no error on the part of the CA in giving due course to the petition forcertiorarifiled by respondent as its case is genuinely meritorious for reasons that will be discussed forthwith.As to the second assigned error, the Court agrees with petitioner that she is not guilty of forum shopping.There is forum shopping when a party avails himself of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising substantially the same issues either pending in or already resolved adversely by some other courts.21The test to determine whether a party violated the rule against forum shopping is whether the elements of litis pendentia are present, or whether a final judgment in one case will amount to res judicata in another.22In other words, when litis pendentia or res judicata does not exist, neither can forum shopping exist.23The requisites oflitis pendentiaare: (a) the identity of parties, or at least such as representing the same interests in both actions; (b) the identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) the identity of the two cases such that judgment in one, regardless of which party is successful, would amount to res judicata in the other.24On the other hand, the elements ofres judicata, also known as "bar by prior judgment," are: (1) the former judgment must be final; (b) the court which rendered it had jurisdiction over the subject matter and the parties; (c) it must be a judgment on the merits; and (d) there must be, between the first and second actions, identity of parties, subject matter, and causes of action.25It bears to note that the proceedings conducted subsequent to the filing of a petition for the issuance of a writ of possession areex parteand summary in nature. The order for the issuance of the writ is simply an incident in the transfer of title in the name of the petitioner.26Hence, such order cannot be said to be a judgment on the merits,i.e., one rendered after a consideration of the evidence or stipulations submitted by the parties at the trial of the case. Thus, in the present case, any order or decision of the RTC in LRC CAD. REC. NOS. 1 and 9616 cannot be considered as determinative of the merits of Civil Case No. 21957.Moreover, the aforementioned cases cannot be said to be identical as the basic issue in LRC CAD. REC. NOS. 1 and 9616 is possession while in Civil Case No. 21957 the issue raised is essentially that of ownership of the disputed lots.Based on the foregoing, there can be nolitis pendentiaorres judicata. Since neitherlitis pendentianorres judicataexists in the instant case, petitioner may not be held guilty of forum shopping.Nonetheless, the Court finds that under applicable laws and jurisprudence, respondent cannot be ejected from the property by means of an ex-parte writ of possession.Article 433 of the Civil Code states:Art. 433. Actual possession under claim of ownership raises a disputable presumption of ownership. The true owner must resort to judicial process for the recovery of the property.Under the aforequoted provision, one who claims to be the owner of a property possessed by another must bring the appropriate judicial action for its physical recovery. The term "judicial process" could mean no less than an ejectment suit or reivindicatory action, in which the ownership claims of the contending parties may be properly heard and adjudicated.27In the present case, petitioner had already complied with this procedure by filing Civil Case No. 21957.The ex-parte petition for issuance of a possessory writ filed by petitioner's predecessor, TRB, in LRC CAD. REC. NOS. 1 and 9616, strictly speaking, is not the kind of "judicial process" contemplated above. Even if the same may be considered a judicial proceeding for the enforcement of ones right of possession as purchaser in a foreclosure sale, it is not an ordinary suit filed in court, by which one party "sues another for the enforcement or protection of a right, or the prevention or redress of a wrong."28The second paragraph of Section 33, Rule 39, of the Rules of Court relating to the right of possession of a purchaser of property in an extra-judicial foreclosure sale provides:Sec. 33. Deed and possession to be given at expiration of redemption period; by whom executed or given.x x xUpon the expiration of the right of redemption, the purchaser or redemptioner shall be substituted to and acquire all the rights, title, interest and claim of the judgment obligor to the property at the time of levy. The possession of the property shall be given to the purchaser or last redemptioner by the same officerunless a third party is actually holding the property adversely to the judgment obligor.(emphasis supplied)Thus, in Barican v. Intermediate Appellate Court,29this Court held that the obligation of a court to issue a writ of possession in favor of the purchaser in an extra-judicial foreclosure sale of a mortgaged property ceases to be ministerial once it is shown that there is a third party in possession of the property who is claiming a right adverse to that of the mortgagor and that such third party is a stranger to the foreclosure proceedings in which theex-partewrit of possession was applied for.It bears emphasis that an ex-parte petition for issuance of a writ of possession is a non-litigious proceeding authorized in an extra-judicial foreclosure of mortgage pursuant to Act 3135, as amended.30It is brought for the benefit of one party only, and without notice to, or consent by any person adversely interested.31Furthermore, unlike a judicial foreclosure of real estate mortgage under Rule 68 of the Rules of Court where an action for foreclosure is brought before the RTC where the mortgaged property or any part thereof is situated, any property brought within the ambit of Act 3135 is foreclosed by the filing of a petition, not with any court of justice, but with the office of the sheriff of the province where the sale is to be made.As such, a third person in possession of an extra-judicially foreclosed property, who claims a right superior to that of the original mortgagor, is thus given no opportunity to be heard in his claim.32It stands to reason, therefore, that such third person may not be dispossessed on the strength of a mere ex-parte possessory writ, since to do so would be tantamount to his summary ejectment, in violation of the basic tenets of due process.33Besides, as earlier stressed, Article 433 of the Civil Code, cited above, requires nothing less than ejectment or reivindicatory action to be brought even by the true owner. After all, the actual possessor of a property enjoys a legal presumption of just title in his favor, which must be overcome by the party claiming otherwise.In the case at bar, it is not disputed that herein respondent had been in possession of the subject lots since 1975 and that it has in its premises bulk plant and fuel storage facilities for the purpose of conducting its business. In this respect, the Court agrees with the findings of the CA that petitioner had knowledge of respondent's prior possession of the disputed properties. Yet, instead of pursuing Civil Action No. 21957 where respondent will be given a chance to substantiate its claim of ownership, petitioner still insists on obtaining a writ of possession pursuant to its alleged right as purchaser of the properties which had been extra-judicially foreclosed. The Court cannot sanction this procedural shortcut. To enforce the writ against herein respondent, an unwitting third party possessor who took no part in the foreclosure proceedings, would be tantamount to the taking of real property without the benefit of proper judicial intervention.Hence, it was not a ministerial duty of the trial court under Act No. 3135 to issue a writ of possession for the ouster of respondent from the lot subject of this instant case, particularly in light of the latter's opposition and claim of ownership and rightful possession of the disputed properties.Moreover, the trial court was without authority to grant the ex-parte writ, since petitioner's right of possession under said Act could be rightfully enforced only against PRI as the original mortgagor and its successors-in-interest,34but not against respondent which possesses the property subject of execution under a claim of ownership, having bought the same from the Development Bank of the Philippines (DBP).In the present case, the questioned Amended Order of the RTC Iloilo, Branch 29 dated January 8, 2002 was issued on the strength of the Writ of Possession issued by the RTC of Iloilo, Branch 30 dated October 24, 1990. It is clear from the said writ that the sheriff is directed to eject PRI or any person claiming interest under it from Lot Nos. 3834, 1-A, 6153, 6156, 6158 and 6159 and to place TRB in possession thereof. However, respondent is not a successor-in-interest of PRI. Instead, respondent claims ownership over the subject lot by virtue of a Deed of Absolute Sale dated June 30, 1975, wherein the property was sold to it by the DBP. As a consequence of such sale, respondent obtained TCT No. 47484 on July 28, 1977. Clearly, respondent's right of possession is adverse to that of PRI or TRB.Furthermore, registration of the lots in petitioners name does not automatically entitle the latter to possession thereof.35As discussed earlier, petitioner must resort to the appropriate judicial process for recovery of the properties and cannot simply invoke its title in an ex-parte proceeding to justify the ouster of respondent,36especially in view of the fact that the latter also has in its possession a Transfer Certificate of Title over the subject properties. The court cannot just ignore the claim of herein respondent, who is in actual possession of the subject properties, that it has been the owner thereof since 1975 and, therefore, has the better right to possess them. Neither can the RTC rely on the Surveyor's Report dated August 3, 1997 because respondent was not given the opportunity to refute it, the same being submitted in theex-parteproceedings for the issuance of a writ of possession in favor of Dayot. Due process dictates that herein respondent cannot simply be ejected on the strength of the subject Surveyor's Report without giving it (respondent) the opportunity to present its own evidence. All of these issues must be ventilated and resolved on the merits after a proper hearing. In the instant case, the proper forum is Civil Case No. 21957.Finally, it is expressly stipulated in the Additional Stipulations of Real Estate Mortgage executed by PRI in favor of TRB that it "excludes those areas already sold to Shell Co., Inc. with total area of 14,920 sq. meters, known as Lot No. 6153-B and portion of Lot No. 5."37Petitioner insists that respondent's TCT No. T-47484 refers to a different parcel of land. Whether respondent's title refers to the same property subject of the present case and whether the parcels of land sold to herein petitioner are the same properties foreclosed by TRB are issues which should properly be resolved in Civil Case No. 21957. This is not the proper forum to determine who between the parties is entitled to ownership of the disputed lands, as the issue in the present case is merely limited to the propriety of the issuance of a writ of possession relating to foreclosure of mortgage.WHEREFORE, the instant petition isDISMISSED. The Decision and Resolution of the Court of Appeals dated July 30, 2002 and December 23, 2002 in CA-G.R. SP. No. 70696 areAFFIRMEDinsofar as respondent Shell Chemical Company (Phils.), Inc. is concerned. Costs against petitioners. SO ORDERED.

Republic of the PhilippinesSUPREME COURTManilaSECOND DIVISIONG.R. No. 119247 February 17, 1997CESAR SULIT,petitioner,vs.COURT OF APPEALS and ILUMINADA CAYCO,respondents.REGALADO,J.:The primary issue posed before the Court, in this appeal bycertiorarifrom a decision1of the Court of Appeals, is whether or not the mortgagee or purchaser in an extrajudicial foreclosure sale is entitled to the issuance of a writ of possession over the mortgaged property despite his failure to pay the surplus proceeds of the sale to the mortgagor or the person entitled thereto. Secondarily, it calls for a resolution of the further consequences of such non-payment of the full amount for which the property was sold to him pursuant to his bid.The material facts, as found by respondent court, are not disputed:It appears from the record that on 9 June 1992 petitioner (herein private respondent) Iluminada Cayco executed a Real Estate Mortgage (REM) over Lot 2630 which is located in Caloocan City and covered by TCT No. (23211) 11591 in favor of private respondent (herein petitioner) Cesar Sulit, to secure a loan of P4 Million. Upon petitioner's failure to pay said loan within the stipulated period, private respondent resorted to extrajudicial foreclosure of the mortgage as authorized in the contract. Hence, in a public auction conducted by Notary Public Felizardo M. Mercado on 28 September 1993 the lot was sold to the mortgagee, herein private respondent, who submitted a winning bid of P7 Million. As stated in the Certificate of Sale executed by the notary public (Annex B, petition), the mortgaged property was sold at public auction to satisfy the mortgage indebtedness of P4 Million. The Certificate further states as follows:IT IS FURTHER CERTIFIED, that the aforementioned highest bidder/buyer, CESAR SULIT, being the petitioner/mortgagee thereupon did not pay to the undersigned Notary Public of Kalookan City the said sum of SEVEN MILLION PESOS (P7,000,000.00), Philippine Currency, the sale price of the above-described real estate property together with all improvements existing thereon, which amount was properly credited to the PARTIAL satisfaction of the mortgage debt mentioned in the said real estate mortgage, plus interests, attorney's fees and all other incidental expenses of foreclosure and sale (par. 2, Annex B, petition).On 13 December 1993 private respondent petitioned the Regional Trial Court of Kalookan City for the issuance of a writ of possession in his favor. The petition was docketed as LRC Case No. C-3462 and assigned to Branch 131, presided over by public respondent.On 17 January 1994 respondent Judge issued a decision (should have been denominated as order), the dispositive part of which reads:WHEREFORE, finding the subject petition to be meritorious, the same is hereby GRANTED. As prayed for, let a Writ of Possession be issued in favor of herein petitioner, Cesar Sulit, upon his posting of an indemnity bond in the amount of One Hundred Twenty Thousand (P120,000.00) Pesos (Annex C, petition).On 28 March 1994 petitioner filed a Motion to have the auction sale of the mortgaged property set aside and to defer the issuance of the writ of possession. She invited the attention of the courta quoto some procedural infirmities in the said proceeding and further questioned the sufficiency of the amount of bond. In the same Motion petitioner prayed as an alternative relief that private respondent be directed to pay the sum of P3 Million which represents the balance of his winning bid of P7 Million less the mortgage indebtedness of P4 Million (Annex D, petition). This Motion was opposed by private respondent who contended that the issuance of a writ of possession upon his filing of a bond was a ministerial duty on the part of respondent Judge (Annex E), to which Opposition petitioner submitted a Reply (Annex F, petition).On 11 May 1994 respondent Judge denied petitioner's Motion and directed the issuance of a writ of possession and its immediate enforcement by deputy sheriff Danilo Norberte (Annex G, petition)."2(Emphasis words supplied for clarity).From the aforesaid orders of the courta quo, herein private respondent Iluminada Cayco filed on May 26, 1994 a petition forcertiorariwith preliminary injunction and/or temporary restraining order before respondent Court of Appeals, which immediately issued astatus quoorder restraining the respondent judge therein from implementing his order of January 17, 1994 and the writ of possession issued pursuant thereto. Subsequently, respondent court rendered judgment on November 11, 1994, as follows:IN JUDGMENT, We grant the writ ofcertiorariand the disputed order of 17 January 1994 which precipitately directed the issuance of a writ of possession in favor of private respondent and the subsequent order of 11 May 1994 which denied petitioner's Motion for Reconsideration are hereby SET ASIDE.Accordingly, private respondent is ordered to pay unto petitioner, through the notary public, the balance or excess of his bid of P7 Million after deducting therefrom the sum of P4,365,280 which represents the mortgage debt and interest up to the date of the auction sale (September 23, 1993), as well as expenses of foreclosure based on receipts which must be presented to the notary public.In the event that private respondent fails or refuses to pay such excess or balance, then the auction sale of 28 September 1993 is deemed CANCELLED and private respondent may foreclose the mortgage anew either in a judicial or extrajudicial proceeding as stipulated in the mortgage contract.Corollary to the principal issue earlier stated, petitioner asserts that respondent Court of Appeals gravely erred when it failed to appreciate and consider the supposed legal significance of the bouncing checks which private respondent issued and delivered to petitioner as payment for the agreed or stipulated interest on the mortgage obligation. He likewise avers that a motion for reconsideration or an appeal, and notcertiorari, is the proper remedy available to herein private respondent from an order denying her motion to defer issuance of the writ of possession. Moreover, it is claimed that any question regarding the propriety of the sale and the issuance of the writ of possession must be threshed out in a summary proceeding provided for in Section 8 of Act 3135.There is no merit in petitioner's contention that the dishonored checks amounting to a total of P1,250,000.00, allegedly representing interest of 5% per month from June 9, 1992 to December 9, 1992, were correctly considered by the trial court as the written agreement between the parties. Instead, we find the explanation of respondent court in rejecting such postulate, on the basis of Article 1956 of the Civil Code,3to be more logical and plausible, to wit:It is noteworthy that the Deed of Real Estate Mortgage executed by the parties on 9 June 1992 (Annex A, Petition) does not contain any stipulation for payment of interest. Private respondent who maintains that he had an agreement with petitioner for the payment of 5% monthly interest did not produce any other writing or instrument embodying such a stipulation on interest. It appears then that if any such agreement was reached by the parties, it was merely a verbal one which does not conform to the aforequoted statutory provision. Certainly, the dishonored checks claimed to have been issued by petitioner in payment of interest could not have been the written stipulation contemplated in Article 1956 of the Code. Consequently, in the absence of a written stipulation for the imposition of interest on the loan obtained by petitioner, private respondent's assessment thereof has no legal basis.4It is elementary that in the absence of a stipulation as to interest, the loan due will now earn interest at the legal rate of 12%per annum5which, according to respondent court, is equivalent to P365,280.000.00 computed from December 10, 1992, after private respondent's obligation became due, until September 23, 1993, the date of the auction sale. It is this amount which should further be deducted from the purchase price of P7,000,000.00, together with any other expenses incurred in connection with the sale, such as the posting and publication of notices, notarial and documentary fees, and assessments or taxes due on the disputed property.It baffles this Court, therefore, why petitioner has continually failed up to the present to submit documentary evidence of the alleged expenses of the foreclosure sale, and this in spite of the express requirement therefor in the certificate of sale6issued by the notary public for the purpose of computing the actual amount payable by the mortgagor or redemptioner in the event of redemption. It may thus be safely presumed that such evidence having been willfully suppressed, it would be adverse if produced.7Coming now to the main issue in this case, petitioner argues that it is ministerial upon the court to issue a writ of possession after the foreclosure sale and during the period of redemption, invoking in support thereof Sections 7 and 8 of Act 3135 which conjointly provide:Sec. 7. In any sale made under the provisions of this Act, the purchaser may petition the Court of First Instance of the province or place where the property or any part thereof is situated, to give him possession thereof during the redemption period, furnishing bond in an amount equivalent to the use of the property for a period of twelve months, to indemnify the debtor in case it be shown that the sale was made without violating the mortgage or without complying with the requirements of this Act. Such petition shall be made under oath and filed in form of anex partemotion in the registration or cadastral proceedings if the property is registered, or in special proceedings in the case of property registered under the Mortgage Law or under section one hundred and ninety-four of the Administrative Code, or of any other real property encumbered with a mortgage duly registered in the office of any register of deeds in accordance with any existing law, and in each case the clerk of the court shall, upon the filing of such petition, collect the fees specified in paragraph eleven of section one hundred and fourteen of Act Numbered Twenty-eight hundred and sixty-six, and the court shall, upon approval of the bond, order that a writ of possession issue, addressed to the sheriff of the province in which the property is situated, who shall execute said order immediately.Sec. 8. The debtor may, in the proceedings in which possession was requested, but not later than thirty days after the purchaser was given possession, petition that the sale be set aside and the writ of possession cancelled, specifying the damages suffered by him, because the mortgage was not violated or the sale was not made in accordance with the provisions hereof, and the Court shall take cognizance of this petition in accordance with the summary procedure provided for in section one hundred and twelve of Act Number Four hundred and ninety-six; and if it finds the complaint of the debtor justified, it shall dispose in his favor of all or part of the bond furnished by the person who obtained possession. Either of the parties may appeal from the order of the judge in accordance with section fourteen of Act Numbered Four hundred and ninety-six; but the order of possession shall continue in effect during the pendency of the appeal.The governing law thus explicitly authorizes the purchaser in a foreclosure sale to apply for a writ of possession during the redemption period by filing anex partemotion under oath for that purpose in the corresponding registration or cadastral proceeding in the case of property with Torrens title. Upon the filing of such motion and the approval of the corresponding bond, the law also in express terms directs the court to issue the order for a writ of possession.No discretion appears to be left to the court. Any question regarding the regularity and validity of the sale, as well as the consequent cancellation of the writ, is to be determined in a subsequent proceeding as outlined in Section 8, and it cannot be raised as a justification for opposing the issuance of the writ of possession since, under the Act, the proceeding for this isex parte.8Such recourse is available to a mortgagee, who effects the extrajudicial foreclosure of the mortgage, even before the expiration of the period of redemption provided by law and the Rules of Court.9The rule is, however, not without exception. Under Section 35, Rule 39 of the Rules of Court, which is made applicable to the extrajudicial foreclosure of real estate mortgages by Section 6 of Act 3135, the possession of the mortgaged property may be awarded to a purchaser in the extrajudicial foreclosure "unless a third party is actually holding the property adversely to the judgment debtor."10Thus, in the case ofBarican, et al.vs.Intermediate Appellate Court,et al.,11this Court took into account the circumstances that long before the mortgagee bank had sold the disputed property to the respondent therein, it was no longer the judgment debtor who was in possession but the petitioner spouses who had assumed the mortgage, and that there was a pending civil case involving the rights of third parties. Hence, it was ruled therein that under the circumstances, the obligation of a court to issue a writ of possession in favor of the purchaser in a foreclosure of mortgage case ceases to be ministerial.Now, in forced sales low prices are generally offered and the mere inadequacy of the price obtained at the sheriff's sale, unless shocking to the conscience, has been held insufficient to set aside a sale. This is because no disadvantage is caused to the mortgagor. On the contrary, a mortgagor stands to gain with a reduced price because he possesses the right of redemption. When there is the right to redeem, inadequacy of price becomes immaterial since the judgment debtor may reacquire the property or sell his right to redeem, and thus recover the loss he claims to have suffered by reason of the price obtained at the auction sale.12However, also by way of an exception, inCometa, et al.vs.Intermediate Appellate Court, et al.13where the properties in question were found to have been sold at an unusually lower price than their true value, that is, properties worth at least P500,000.00 were sold for only P57,396.85, this Court, taking into consideration the factual milieu obtaining therein as well as the peculiar circumstances attendant thereto, decided to withhold the issuance of the writ of possession on the ground that it could work injustice because the petitioner might not be entitled to the same.The case at bar is quite the reverse, in the sense that instead of an inadequacy in price, there is due in favor of private respondent, as mortgagor, a surplus from the proceeds of the sale equivalent to approximately 40% of the total mortgage debt, which excess is indisputably a substantial amount. Nevertheless, it is our considered opinion, and we so hold, that equitable considerations demand that a writ of possession should also not issue in this case.Rule 68 of the Rules of Court provides:Sec. 4. Disposition of proceeds of sale. The money realized from the sale of mortgaged property under the regulations hereinbefore prescribed shall, after deducting the costs of the sale, be paid to the person foreclosing the mortgage, and when there shall be any balance or residue, after paying off such mortgage or other incumbrances, the same shall be paid to the junior incumbrancers in the order of their priority, to be ascertained by the court, or if there be no such incumbrancers or there be a balance or residue after payment of such incumbrancers, then to the mortgagor or his agent, or to the person entitled to it.The application of the proceeds from the sale of the mortgaged property to the mortgagor's obligation is an act of payment, not payment by dation; hence, it is the mortgagee's duty to return any surplus in the selling price to themortgagor.14Perforce, a mortgagee who exercises the power of sale contained in a mortgage is considered a custodian of the fund, and, being bound to apply it properly, is liable to the persons entitled thereto if he fails to do so. And even though the mortgagee is not strictly considered a trustee in a purely equitable sense, but as far as concerns the unconsumed balance, the mortgagee is deemed a trustee for the mortgagor or owner of the equity of redemption.15Commenting on the theory that a mortgagee, when he sells under a power, cannot be considered otherwise than as a trustee, the vice-chancellor inRobertson vs.Norris(1 Giff.421) observed: "That expression is to be understood in this sense: that with the power being given to enable him to recover the mortgage money, the court requires that he shall exercise the power of sale in a provident way, with a due regard to the rights and interests of the mortgagor in the surplus money to be produced by the sale."16The general rule that mere inadequacy of price is not sufficient to set aside a foreclosure sale is based on the theory that the lesser the price the easier it will be for the owner to effect the redemption.17The same thing cannot be said where the amount of the bid is in excess of the total mortgage debt. The reason is that in case the mortgagor decides to exercise his right of redemption, Section 30 of Rule 39 provides that the redemption price should be equivalent to the amount of the purchase price, plus one per cent monthly interest up to the time of the redemption,18together with the amount of any assessments or taxes which the purchaser may have paid thereon after purchase, and interest on such last-named amount at the same rate.19Applying this provision to the present case would be highly iniquitous if the amount required for redemption is based on P7,000.000.00, because that would mean exacting payment at a price unjustifiably higher than the real amount of the mortgage obligation. We need not elucidate on the obvious. Simply put, such a construction will undeniably be prejudicial to the substantive rights of private respondent and it could even effectively prevent her from exercising the right of redemption.Where the redemptioner chooses to exercise his right of redemption, it is the policy of the law to aid rather than to defeat his right. It stands to reason, therefore, that redemption should be looked upon with favor and where no injury will follow, a liberal construction will be given to our redemption laws, specifically on the exercise of the right to redeem. Conformably hereto, and taking into consideration the facts obtaining in this case, it is more in keeping with the spirit of the rules, particularly Section 30 of Rule 39, that we adopt such interpretation as may be favorable to the private respondent.Admittedly, no payment was made by herein petitioner, as the highest bidder, to the notary public who conducted the extrajudicial foreclosure sale. We are not unmindful of the rule that it is not necessary for the mortgagee to pay cash to the sheriff or, in this case, the notary public who conducted the sale. It would obviously serve no purpose for the sheriff or the notary public to go through the idle ceremony of receiving the money and paying it back to the creditor, under the truism that the lawmaking body did not contemplate such a pointless application of the law in requiring that the creditor must bid under the same conditions as any other bidder.20It bears stressing that the rule holds true only where the amount of the bid represents the total amount of the mortgage debt.In case of a surplus in the purchase price, however, there is jurisprudence to the effect that while the mortgagee ordinarily is liable only for such surplus as actually comes into his hands, but he sells on credit instead of for cash, he must still account for the proceeds as if the price were paid in cash, and in an action against the mortgagee to recover the surplus, the latter cannot raise the defense that no actual cash was received.21We cannot simply ignore the importance of surplus proceeds because by their very nature, surplus money arising from a sale of land under a decree of foreclosure stands in the place of the land itself with respect to liens thereon or vested rights therein. They are constructively, at least, real property and belong to the mortgagor or his assigns.22Inevitably, the right of a mortgagor to the surplus proceeds is a substantial right which must prevail over rules of technicality.Surplus money, in case of a foreclosure sale, gains much significance where there are junior encumbrancers on the mortgaged property. Jurisprudence has it that when there are several liens upon the premises, the surplus money must be applied to their discharge in the order of their priority.23A junior mortgagee may have his rights protected by an appropriate decree as to the application of the surplus, if there be any, after satisfying the prior mortgage. His lien on the land is transferred to the surplus fund.24And a senior mortgagee, realizing more than the amount of his debt on a foreclosure sale, is regarded as a trustee for the benefit of junior encumbrancers.25Upon the strength of the foregoing considerations, we cannot countenance the apparent paltriness that petitioner persistently accords the right of private respondent over the surplus proceeds. It must be emphasized that petitioner failed to present the receipts or any other proof of the alleged costs or expenses incurred by him in the foreclosure sale. Even the trial court failed or refused to resolve this issue, notwithstanding the fact that this was one of the grounds raised in the motion filed by private respondent before it to set aside the sale. Since it has never been denied that the bid price greatly exceeded the mortgage debt, petitioner cannot be allowed to unjustly enrich himself at the expense of private respondent.As regards the issue concerning the alleged defect in the publication of the notice of the sale, suffice it to state for purposes of this discussion that a question of non-compliance with the notice and publication requirements of an extrajudicial foreclosure sale is a factual issue and the resolution thereof by the lower courts is binding and conclusive upon this Court,26absent any showing of grave abuse of discretion. In the case at bar, both the trial court and respondent Court of Appeals have found that the sale was conducted in accordance with law. No compelling reason exists in this case to justify a rejection of their findings or a reversal of their conclusions.There is likewise no merit in the argument that if private respondent had wanted to question the validity of the sale, she should have filed a petition to set the same aside and to cancel the writ of possession. These, it is argued, should have been disposed of in accordance with the summary procedure laid down in Section 112 of the Land Registration Act, provided the petition is filed not later than thirty days after the purchaser was given possession of the land. Considering, however, that private respondent has filed a motion to set aside the sale and to defer the issuance of a writ of possession before the court where theex partepetition for issuance of such writ was then pending, we deem the same to be substantial compliance with the statutory prescription.We, however, take exception to and reject the last paragraph in the dispositive portion of the questioned decision of respondent court, which we repeat:In the event that private respondent fails or refuses to pay such excess or balance, then the auction sale of 28 September 1993 is deemed CANCELLED and private respondent (petitioner herein) may foreclose the mortgage anew either in a judicial or extrajudicial proceeding as stipulated in the mortgage contract.for lack of statutory and jurisprudential bases. The quoted phrase "as stipulated in the mortgage contract" does not, of course, envision such contingency or warrant the suggested alternative procedure.Section 4 of Rule 64, hereinbefore quoted, merely provides that where there is a balance or residue after payment of the mortgage, the same shall be paid to the mortgagor. While the expedient course desired by respondent court is commendable, there is nothing in the cited provision from which it can be inferred that a violation thereof will have the effect of nullifying the sale. The better rule is that if the mortgagee is retaining more of the proceeds of the sale than he is entitled to, this fact alone will not affect the validity of the sale but simply gives the mortgagor a cause of action to recover such surplus.27This is likewise in harmony with the decisional rule that in suing for the return of the surplus proceeds, the mortgagor is deemed to have affirmed the validity of the sale since nothing is due if no valid sale has been made.28In the early case ofCaparas vs.Yatco, etc.,et al.,29it was also held that where the mortgagee has been ordered by the court to return the surplus to the mortgagor or the person entitled thereto, and the former fails to do so and flagrantly disobeys the order, the court can cite the mortgagee for contempt and mete out the corresponding penalty under Section 3(b) of the former Rule 64 (now Rule 71) of the Rules of Court.WHEREFORE, the questioned decision of the Court of Appeals is MODIFIED by deleting the last paragraph of itsfallo, but its disposition of this case in all other respects is hereby AFFIRMED.SO ORDERED.Romero, Puno, Mendoza and Torres, Jr., JJ., concur.

Republic of the PhilippinesSUPREME COURTManilaTHIRD DIVISIONG.R. No. 159882 November 23, 2007SPOUSES RUBEN and VIOLETA SAGUAN,Petitioners,vs.PHILIPPINE BANK OF COMMUNICATIONS and COURT OF APPEALS (Second Division),Respondents.D E C I S I O NNACHURA,J.:This is a petition for review on certiorari1of the Decision2dated January 24, 2003 and of the Resolution3dated August 21, 2003 of the Court of Appeals (CA) in CA-G.R. SP No. 71775. The Decision affirmed the Orders4of the Regional Trial Court (RTC) of Branch 31, Tagum City, Davao: (1) dated November 5, 2001 admitting respondent Philippine Bank of Communications Exhibits "A" to "P"; (2) dated March 19, 2002 denying petitioners, spouses Ruben and Violeta Saguans, Motion to Present Evidence, and granting private respondents petition for issuance of a writ of possession; and (3) dated May 6, 2002 denying petitioners Motion for Reconsideration of the second order.The facts, as found by the CA, are not in dispute:[Petitioners] spouses Ruben Saguan and Violeta Saguan obtained a loan ofP3 Million from [respondent] Philippine Bank of Communications. To secure the obligation, they mortgaged five parcels of land covered by TCT Nos. 24274, 38894, 37455, 66339 and 19365, all of the Register of Deeds of the Province of Davao, and improvements therein.Because [petitioners] defaulted in the payment of their mortgage indebtedness, [respondent] extra-judicially foreclosed the mortgage. In the auction sale on 05 January 1998, [respondent] was the only and highest bidder forP6,008,026.74. Sheriffs certificate of sale dated 12 January 1998 was executed and annotated at the back of [petitioners] titles on 18 February 1998. As [petitioners] failed to redeem the properties within the one-year period ending on 18 February 1999, TCT Nos. T-154065, T-154066, T-154067, T-154068 and T-154069 were issued in the name of [respondent] in lieu of the old ones. Thus, [respondent] consolidated ownership of the properties in its favor. Since the parcels of land were in physical possession of [petitioners] and other persons [co-petitioners in the petition before the CA], [respondent], after due demand, filed a petition for writ of possession with Branch 31, Regional Trial Court, Tagum City. x x x.5Petitioners filed an Opposition6to the petition for writ of possession to which respondent filed a Comment.7Petitioners likewise filed a Reply8to the Comment.In their Opposition and Reply, petitioners argued that a writ of possession should not issue considering respondents failure to return the excess or surplus proceeds9of the extrajudicial foreclosure sale based on our ruling in Sulit v. Court of Appeals.10In refutation, respondent points to petitioners remaining unsecured obligations with the former to which the excess or surplus proceeds were applied.After the hearing on respondents evidence, the RTC issued two (2) separate orders requiring respondent to file a Formal Offer of Evidence. Respondent failed to comply with the aforesaid orders within the time frame prescribed, thus prompting petitioners to file a motion to dismiss grounded on Section 3,11Rule 17 of the Rules of Court.Thereafter, respondent belatedly filed its Formal Offer of Evidence. Consequently, the RTC issued the first assailed Order12admitting respondents offer of exhibits thereby rendering petitioners motion to dismiss moot and academic. The RTC then issued the Order13denying petitioners Motion to Present Evidence and granted the petition for writ of possession. The last Order14of the RTC denied petitioners Motion for Reconsideration.Upon petition for certiorari and mandamus, the CA rejected petitioners allegations of grave abuse of discretion in the lower courts issuance of the foregoing Orders. The CA affirmed respondents entitlement to a writ of possession as a matter of right, the latter having consolidated its ownership over the parcels of land upon expiration of the redemption period. It emphasized that the issue on the failure to return the excess or surplus proceeds of the auction sale had been squarely met by the respondent, and therefore, the case was distinguishable from Sulit v. Court of Appeals. In all, the CA upheld the general rule that the issuance of a writ of possession to a purchaser in an extrajudicial foreclosure sale becomes merely a ministerial function of the court.Hence, this recourse.In this appeal, the issues for our resolution are:1. Whether the RTC should have issued a writ of possession considering respondents failure to remit the excess or surplus proceeds of the extrajudicial foreclosure sale.2. Corollary thereto, whether respondent may unilaterally apply the excess or surplus proceeds of the extrajudicial foreclosure sale to petitioners remaining unsecured obligations.3. Whether the RTC should have granted petitioners motion to dismiss the petition for writ of possession based on respondents failure to comply with the RTCs Orders on the filing of a formal offer of evidence.A writ of possession is an order enforcing a judgment to allow a persons recovery of possession of real or personal property. An instance when a writ of possession may issue is under Act No. 3135,15as amended by Act No. 4118, on extrajudicial foreclosure of real estate mortgage.16Sections 6 and 7 provide, to wit:Section 6. Redemption. In all cases in which an extrajudicial sale is made under the special power herein before referred to, the debtor, his successors-in-interest or any judicial creditor or judgment creditor of said debtor or any person having a lien on the property subsequent to the mortgage or deed of trust under which the property is sold, may redeem the same at anytime within the term of one year from and after the date of the sale; and such redemption shall be governed by the provisions of section four hundred and sixty-four to four hundred and sixty-six, inclusive, of the Code of Civil Procedure, in so far as these are not inconsistent with the provisions of this Act.Section 7. Possession during redemption period. In any sale made under the provisions of this Act, the purchaser may petition the Court of First Instance of the province or place where the property or any part thereof is situated, to give him possession thereof during the redemption period, furnishing bond in an amount equivalent to the use of the property for a period of twelve months, to indemnify the debtor in case it be shown that the sale was made without violating the mortgage or without complying with the requirements of this Act. Such petition shall be made under oath and filed in [the] form of an ex-parte motion in the registration or cadastral proceedings if the property is registered, or in special proceedings in case of property registered under the Mortgage Law or under section one hundred and ninety-four of the Administrative Code, or of any other real property encumbered with a mortgage duly registered in the office of any register of deeds in accordance with any existing law, and in each case the clerk of court shall, upon the filing of such petition, collect the fees specified in paragraph eleven of section one hundred and fourteen of Act Number Four hundred and ninety-six, and the court shall, upon approval of the bond, order that a writ of possession issue, addressed to the sheriff of the province in which the property is situated, who shall execute said order immediately.From the foregoing provisions, a writ of possession may be issued either (1) within the one-year redemption period, upon the filing of a bond, or (2) after the lapse of the redemption period, without need of a bond.17Within the redemption period the purchaser in a foreclosure sale may apply for a writ of possession by filing for that purpose an ex-parte motion under oath, in the corresponding registration or cadastral proceeding in the case of property covered by a Torrens title. Upon the filing of an ex-parte motion and the approval of the corresponding bond, the court is expressly directed to issue the order for a writ of possession.18On the other hand, after the lapse of the redemption period, a writ of possession may be issued in favor of the purchaser in a foreclosure sale as the mortgagor is now considered to have lost interest over the foreclosed property.19Consequently, the purchaser, who has a right to possession after the expiration of the redemption period, becomes the absolute owner of the property when no redemption is made.20In this regard, the bond is no longer needed. The purchaser can demand possession at any time following the consolidation of ownership in his name and the issuance to him of a new TCT. After consolidation of title in the purchasers name for failure of the mortgagor to redeem the property, the purchasers right to possession ripens into the absolute right of a confirmed owner. At that point, the issuance of a writ of possession, upon proper application and proof of title, to a purchaser in an extrajudicial foreclosure sale becomes merely a ministerial function.21Effectively, the court cannot exercise its discretion.Therefore, the issuance by the RTC of a writ of possession in favor of the respondent in this case is proper. We have consistently held that the duty of the trial court to grant a writ of possession in such instances is ministerial, and the court may not exercise discretion or judgment.22The propriety of the issuance of the writ was heightened in this case where the respondents right to possession of the properties extended after the expiration of the redemption period, and became absolute upon the petitioners failure to redeem the mortgaged properties.Notwithstanding the foregoing, the petitioners insist that respondents failure to return the excess or surplus proceeds of the extrajudicial foreclosure sale converted the issuance of a writ of possession from a ministerial to a discretionary function of the trial court pursuant to our holding in Sulit v. Court of Appeals.23We are not persuaded.A careful reading of Sulit will readily show that it was decided under a different factual milieu. In Sulit, the plea for a writ of possession was made during the redemption period and title to the property had not, as yet, been consolidated in favor of the purchaser in the foreclosure sale. In stark contrast, the herein petitioners failed to exercise their right of redemption within the one-year reglementary period provided under Section 6 of Act No. 3135, as amended, and ownership over the properties was consolidated in, and corresponding titles issued in favor of, the respondent.We emphasize that the proceeding in a petition for a writ of possession is ex-parte and summary in nature. It is a judicial proceeding brought for the benefit of one party only and without need of notice to any person claiming an adverse interest. It is a proceeding wherein relief is granted even without giving the person against whom the relief is sought an opportunity to be heard.24By its very nature, an ex-parte petition for issuance of a writ of possession is a non-litigious proceeding authorized under Act No. 3135, as amended.Be that as it may, the debtor or mortgagor is not without recourse. Section 8 of Act No. 3135, as amended, provides:Section 8. Setting aside of sale and writ of possession. The debtor may, in the proceedings in which possession was requested, but not later than thirty days after the purchaser was given possession, petition that the sale be set aside and the writ of possession cancelled, specifying the damages suffered by him, because the mortgage was not violated or the sale was not made in accordance with the provisions hereof, and the court shall take cognizance of this petition in accordance with the summary procedure provided for in section one hundred and twelve of Act Numbered Four hundred and ninety-six; and if it finds the complaint of the debtor justified, it shall dispose in his favor of all or part of the bond furnished by the person who obtained possession. Either of the parties may appeal from the order of the judge in accordance with section fourteen of Act Numbered Four hundred and ninety-six; but the order of possession shall continue in effect during the pendency of the appeal.Thus, a party may file a petition to set aside the foreclosure sale and to cancel the writ of possession in the same proceedings where the writ of possession was requested. However, in this case, petitioners do not challenge the validity of the foreclosure nor do they wish to set aside the foreclosure sale. It appears that the only remaining bone of contention is the disposition of the excess or surplus proceeds of the foreclosure sale. In short, petitioners do not question the consolidation of ownership in favor of the respondent, but simply demand the payment of the sum of money supposedly still owing them from the latter.Article 427,25in relation to Article 428,26of the Civil Code provides that ownership may be exercised over things or rights, and grants the owner of property a right of action for recovery against the holder and possessor thereof.Thus, even as we rule that the writ of possession was properly issued in favor of respondent as a consequence of its confirmed ownership, we are not unmindful of the fact that the issue of the excess or surplus proceeds of the foreclosure sale remains unsettled.Respondents stance, as sustained by the CA, is that petitioners have remaining unsecured obligations with respondent and the excess or surplus proceeds of the foreclosure sale were validly, albeit unilaterally, applied thereto.This argument is unacceptable.We have elucidated on the import of surplus proceeds in the case of Sulit, viz.:In case of a surplus in the purchase price, however, there is jurisprudence to the effect that while the mortgagee ordinarily is liable only for such surplus as actually comes into his hands, but he sells on credit instead of for cash, he must still account for the proceeds as if the price were paid in cash, and in an action against the mortgagee to recover the surplus, the latter cannot raise the defense that no actual cash was received.We cannot simply ignore the importance of surplus proceeds because by their very nature, surplus money arising from a sale of land under a decree of foreclosure stands in the place of the land itself with respect to liens thereon or vested rights therein. They are constructively, at least, real property and belong to the mortgagor or his assigns. Inevitably, the right of a mortgagor to the surplus proceeds is a substantial right which must prevail over rules of technicality.Surplus money, in case of a foreclosure sale, gains much significance where there are junior encumbrancers on the mortgaged property. Jurisprudence has it that when there are several liens upon the premises, the surplus money must be applied to their discharge in the order of their priority. A junior mortgagee may have his rights protected by an appropriate decree as to the application of the surplus, if there be any, after satisfying the prior mortgage. His lien on the land is transferred to the surplus fund. And a senior mortgagee, realizing more than the amount of his debt on a foreclosure sale, is regarded as a trustee for the benefit of junior encumbrancers.27Given the foregoing pronouncement in Sulit, we cannot countenance respondents cavalier attitude towards petitioners right to the surplus proceeds. To begin with, the foreclosure of petitioners properties was meant to answer only the obligation secured by the mortgage. Article 2126 of the Civil Code unequivocally states:Art. 2126. The mortgage directly and immediately subjects the property upon which it is imposed, whoever the possessor may be, to the fulfillment of the obligation for whose security it was constituted.We need not expound on the obvious. Simply put, even if petitioners have remaining obligations with respondent, these obligations, as conceded by respondent itself, were not collateralized by the foreclosed properties.1avvphi1Furthermore, under Section 128of Act No. 3135 as amended, the special power of attorney authorizing the extrajudicial foreclosure of the real estate mortgage must be either (1) inserted or stated in the mortgage deed itself; or (2) the authority is attached thereto. Thus, petitioners supposed remaining obligations which were not secured by the mortgage cannot be made subject, or even susceptible, to the extrajudicial foreclosure of mortgage.However, petitioners remedy lies in a separate civil action for collection of a sum of money.29We have previously held that where the mortgagee retains more of the proceeds of the sale than he is entitled to, this fact alone will not affect the validity of the sale but simply give the mortgagor a cause of action to recover such surplus.30In the same case, both parties can establish their respective rights and obligations to one another, after a proper liquidation of the expenses of the foreclosure sale, and other interests and claims chargeable to the purchase price of the foreclosed property. The court can then determine the proper application of compensation with respect to respondents claim on petitioners remaining unsecured obligations.31In this regard, respondent is not precluded from itself filing a case to collect on petitioners remaining debt.Anent the third issue, we agree with the CA that there was no grave abuse of discretion in the trial courts liberality in giving ample time and opportunity for respondent to complete the presentation of its evidence. It was a liberality that carried no taint of partiality. Despite the ex-parte nature of the proceedings, the RTC also allowed petitioners to file pleadings to oppose the petition for the issuance of the writ of possession. Clearly, petitioners were not denied due process, and the trial judge acted accordingly in admitting respondents uncontroverted evidence.Finally, we note petitioners incorrect remedy of certiorari before the CA, which the latter and both parties have apparently overlooked. A special civil action for certiorari may be availed of only if the lower tribunal has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and if there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law.321wphi1Ineluctably, the RTC issued the writ of possession in compliance with the express provisions of Act No. 3135. It cannot, therefore, be charged with grave abuse of discretion as there is no showing that, in the exercise of its judgment, it acted in a capricious, whimsical, arbitrary or despotic manner tantamount to lack of jurisdiction. Absent grave abuse of discretion, petitioners should have filed an ordinary appeal instead of a petition for certiorari. The soundness of the order granting the writ of possession is a matter of judgment with respect to which the remedy of the party aggrieved is ordinary appeal. An error of judgment committed by a court in the exercise of its legitimate jurisdiction is not the same as "grave abuse of discretion." Errors of judgment are correctible by appeal, while those of jurisdiction are reviewable by certiorari.33Nonetheless, we have allowed this procedural lapse to pass without incident, and have resolved the issues raised.WHEREFORE, the Petition is DENIED. The writ of possession in favor of respondent Philippine Bank of Communications is hereby AFFIRMED without prejudice to petitioners separate remedy for recovery of the excess or surplus proceeds of the extrajudicial foreclosure sale. Costs against the petitioner. SO ORDERED.Republic of the PhilippinesSUPREME COURTManilaTHIRD DIVISIONTERESITA MONZON,Petitioner,- versus -SPS. JAMES & MARIA ROSA NIEVES RELOVA and SPS. BIENVENIDO & EUFRACIA PEREZ,Respondents.- versus -ADDIO PROPERTIES, INC.,Intervenor.G.R. No. 171827Present:YNARES-SANTIAGO, J.,Chairperson,AUSTRIA-MARTINEZ,CHICO-NAZARIO,NACHURA, andREYES, JJ.Promulgated:September 17, 2008x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -xD E C I S I O NCHICO-NAZARIO, J.:This is a Petition for Review on Certiorari assailing the Decision1of the Court of Appeals dated 27 September 2005 and its Resolution dated 7 March 2006 in CA-G.R. CV No. 83507 affirming the Decision of the Regional Trial Court (RTC) of Tagaytay City, Branch 18.The factual and procedural antecedents of this case are as follows:On 18 October 2000, the spouses James and Maria Rosa Nieves Relova and the spouses Bienvenido and Eufracia Perez, respondents before this Court, filed against Atty. Ana Liza Luna, Clerk of Court of Branch 18 of the RTC of Tagaytay City, and herein petitioner Teresita Monzon an initiatory pleading captioned as a Petition for Injunction. The case, which was filed before the same Branch 18 of the RTC of Tagaytay City, was docketed as Civil Case No. TG-2069.In their Petition for Injunction, respondents alleged that on 28 December 1998, Monzon executed a promissory note in favor of the spouses Perez for the amount ofP600,000.00, with interest of five percent per month, payable on or before 28 December 1999. This was secured by a 300-square meter lot in Barangay Kaybagal, Tagaytay City. Denominated as Lot No. 2A, this lot is a portion of Psu-232001, covered by Tax Declaration No. 98-008-1793. On 31 December 1998, Monzon executed a Deed of Absolute Sale over the said parcel of land in favor of the spouses Perez.Respondents also claim in their Petition for Injunction that on 29 March 1999, Monzon executed another promissory note, this time in favor of the spouses Relova for the amount ofP200,000.00 with interest of five percent per month payable on or before 31 December 1999. This loan was secured by a 200 square meter lot, denominated as Lot No. 2B, another portion of the aforementioned Psu-232001 covered by Tax Declaration No. 98-008-1793. On 27 December 1999, Monzon executed a Deed of Conditional Sale over said parcel of land in favor of the spouses Relova.On 23 October 1999, the Coastal Lending Corporation extrajudicially foreclosed the entire 9,967-square meter property covered by P