Nature of possessory proceedings

As to the nature of a petition for a writ of possession, it is well to state that it is ex parte and summary in nature. It is brought for the benefit of one party only and without notice by the court to any person adverse of interest, and is granted without giving the person against whom the relief is sought an opportunity to be heard.[1]

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, and is not, strictly speaking, a judicial process as contemplated in Article 433[2] of the Civil Code.[3] Moreover, the possessory proceeding under Section 7[4] of Act No. 3135 is not a judgment on the merits, but simply an incident in the transfer of title.[5]

[1]Santiago v. Merchants Rural Bank of Talavera, Inc., 493 Phil. 862, 869 (2005),

[2] 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.

[3] Spouses Oliveros v. Presiding Judge, RTC, Br. 24, BiƱan, Laguna, 558 Phil. 715, 726 (2007).

[4] 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 an ex parte motion 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 Four hundred and ninety-six, as amended by 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.

[6] Roger Cabuhat v. Development Bank of the Philippines, supra note 6, citing Ong v. Court of Appeals,3SS Phil. 857, 867-868 (2000).

Popular Posts