A writ of possession is a writ of execution employed to enforce a judgment to recover the possession of land. It commands the sheriff to enter the land and give possession of it to the person entitled under the judgment. It may be issued in case of an extrajudicial foreclosure of a real estate mortgage under Section 7 of Act No. 3135, as amended by Act No. 4118.
Ministerial Duty of Court
Under said provision, the writ of possession may be issued to the purchaser in a foreclosure sale either within the one-year redemption period upon the filing of a bond, or after the lapse of the redemption period, without need of a bond.
We have consistently held that the duty of the trial court to grant a writ of possession is ministerial. Such writ issues as a matter of course upon the filing of the proper motion and the approval of the corresponding bond. No discretion is left to the trial 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 of Act No. 3135. Such question cannot be raised to oppose the issuance of the writ, since the proceeding is ex parte. The recourse is available even before the expiration of the redemption period provided by law and the Rules of Court.
To emphasize the writ's ministerial character, we have in previous cases disallowed injunction to prohibit its issuance, just as we have held that issuance of the same may not be stayed by a pending action for annulment of mortgage or the foreclosure itself. (LZK Holdings vs. Philippine Planters Bank, G.R. No. 187973, 20 Jan. 2014) (Read in LawPhil)
Proceeding is Ex-Parte and Summary
As to the nature of a petition for a writ of possession, it is well to state 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 notice by the court to any person adverse of interest. It is a proceeding wherein relief is granted without giving the person against whom the relief is sought an opportunity to be heard.20
By 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.21
It is not strictly speaking a judicial process as contemplated in Article 433 of the Civil Code.22 It is a judicial proceeding for the enforcement of one’s 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 of a wrong or protection of a right, or the prevention or redress of a wrong."23
The law does not require that a petition for a writ of possession may be granted only after documentary and testimonial evidence shall have been offered to and admitted by the court. As long as a verified petition states the facts sufficient to entitle the petitioner to the relief requested, the court shall issue the writ prayed for. The petitioner need not offer any documentary or testimonial evidence for the court to grant the petition.24 (Oliveros vs. Presiding Judge, RTC Laguna, G.R. No. 165963, 03 Sept. 2007) (Read in LawPhil)
When Bond Not Required
During the one-year redemption period, as contemplated by Section 7 of the above-mentioned law, a purchaser may apply for a writ of possession by filing an ex parte motion under oath in the registration or cadastral proceedings if the property is registered, or in special proceedings in case the property is registered under the Mortgage Law. In this case, a bond is required before the court may issue a writ of possession.
On the other hand, upon the lapse of the redemption period, a writ of possession may be issued in favor of the purchaser in a foreclosure sale, also upon a proper ex parte motion. This time, no bond is necessary for its issuance; the mortgagor is now considered to have lost any interest over the foreclosed property.20 The purchaser then becomes the owner of the foreclosed property, and he can demand possession at any time following the consolidation of ownership of the property and the issuance of the corresponding TCT in his/her name. It is at this point that the right of possession of the purchaser can be considered to have ripened into the absolute right of a confirmed owner. The issuance of the writ, upon proper application, is a ministerial function that effectively forbids the exercise by the court of any discretion. This second scenario is governed by Section 6 of Act 3135, in relation to Section 35, Rule 39 of the Revised Rules of Court.21 (Nagtalon vs. United Coconut Planters Bank, G.R. No. 172504, 31 July 2013) [Read in LawPhil]
When Issuance of Writ Not Ministerial
It is thus settled that the buyer in a foreclosure sale becomes the absolute owner of the property purchased if it is not redeemed during the period of one year after the registration of the sale. As such, he is entitled to the possession of the said property and can demand it at any time following the consolidation of ownership in his name and the issuance to him of a new transfer certificate of title. The buyer can in fact demand possession of the land even during the redemption period except that he has to post a bond in accordance with Section 7 of Act No. 3135, as amended. No such bond is required after the redemption period if the property is not redeemed. x x x (Emphasis supplied
Upon the expiration of the period to redeem and no redemption was made, the purchaser, as confirmed owner, has the absolute right to possess the land and the issuance of the writ of possession becomes a ministerial duty of the court upon proper application and proof of title.24
There is, however, an exception to the rule. Under Section 33, Rule 39 of the Rules of Court,25 the possession of the property shall be given to the purchaser or last redemptioner unless a third party is actually holding the property in a capacity adverse to the judgment obligor. Thus, the court’s obligation to issue an ex parte writ of possession in favor of the purchaser in an extrajudicial foreclosure sale ceases to be ministerial when there is a third party in possession of the property claiming a right adverse to that of the judgment debtor/mortgagor.26 In such a case, the issuance of the writ of possession ceases to be ex-parte and non-adversarial as the trial court must order a hearing to determine the nature of said possession, i.e., whether or not possession of the subject property is under a claim averse to that of the judgment debtor.27 We repeatedly emphasize though that the exception provided under Section 33 contemplates a situation in which a third party holds the property by adverse title or right vis-a-vis the judgment debtor or mortgagor, such as that of a co-owner, agricultural tenant or usufructuary, who possesses the property in his or her own right, and is not merely the successor or transferee of the right of possession of another co-owner or the owner of the property.28
In this case, while it is undisputed that petitioner was in possession of the subject property, it cannot be said that his right to possess the same is by virtue of being a co-owner, agricultural tenant or usufructuary; nor is the claim to his right of possession analogous to the foregoing situations. What is clear is that he allegedly acquired the property from Pardo by reason of a donation mortis causa. He is, therefore, a transferee or successor-in-interest who merely stepped into the shoes of his aunt. He cannot assert that his right of possession is adverse to that of Pardo as he has no independent right of possession. Consequently, under legal contemplation, he cannot be considered as a "third party who is actually holding the property adversely to the judgment obligor." The trial court had the ministerial duty to issue, as it did issue, the possessory writ in favor of respondent Pangilinan. As it appeared, there was no reason for it to order the recall of the writ already issued. (Bascara vs. Sheriff Javier, G.R. No. 188069, 17 June 2015) [Read in Lawphil]
