Issuance of possession writ after redemption period
SECTION 7. In any sale made under the provisions of this Act, the purchaser may petition the Court of First Instance (Regional Trial Court) 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 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.
Although the above provision clearly pertains to a writ of possession
availed of and issued within the redemption period of the foreclosure sale,
the same procedure also applies to a situation where a purchaser is seeking possession of the foreclosed property bought at the public auction sale after the redemption period has expired without redemption having been made. The only difference is that in the latter case,
no bond is required therefor, as
held inChina Banking Corporation v. Lozada, thus:
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.[1]
There is, however, an exception to the rule. Under Section 33, Rule 39 of the Rules of Court,[2]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 anex partewrit 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.[3]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.[4] The Supreme Court repeatedly emphasized though that the exception provided under Section 33 contemplates a situation in which a third party holds the property by adverse title or rightvis-a-visthe 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.[5]
[1]Gatuslao v. Yanson, G.R. No. 191540, January 21, 2015. See also; Cabling v. Lumapas, G.R. No. 196950, June 18, 2014; Spouses Marquez v. Spouses Alindog, G.R. No. 184045, January 22, 2014; Rural Bank ofSta. Barbara (Iloilo), Inc. v. Centeno, G.R. No. 200667, March 11, 2013, 693 SCRA 110, 114; Madriaga, Jr. v. China Banking Corporation, G.R. No. 192377, July 25, 2012, 677 SCRA 560, 571 and BPI Family Savings Bank, Inc. v. Golden Power Diesel Sales Center Inc. et al., 654 Phil 382 390-391 (2011).
[2] Sec. 33. Deed and possession to be given at expiration of redemption period; by whom executed or given.
[3]Gatuslao v. Yanson; Cabling v. Lumapas; Rural Bank of Sta. Barbara (Iloilo), Inc. v. Centeno; Madriaga, Jr. v. China Banking Corporation; and BPI Family Savings Bank, Inc. v. Golden Power Diesel Sales Center, Inc., et al.
[4] Gatuslao v. Yanson; Okabe v. Salurnino, G.R. No. 196040, August 26,
2014; and BPI Family Savings Bank, Inc. v. Golden Power Diesel Sales Center,
Inc., et al..
[5]China Banking Corp. v. Sps. Lozada, 579 Phil. 454, 478-480 (2008), citing St. Dominic Corp. v. Intermediate Appellate Court, 235 Phil. 582, 596 (1987). See also Gatuslao v. Yanson; Cabling v. Lumapas; Spouses Marquez v. Spouses Alindog; Rural Bank of Sta. Barbara (Iloilo), Inc. v. Centeno; Madriaga, Jr. v. China Banking Corporation; BPI Family Savings Bank, Inc. v. Golden Power Diesel Sales Center, Inc., et al.
