GRACIA R. JOVEN, petitioner, vs. COURT OF APPEALS, HON. MANUEL A. PATRON, in his capacity as Presiding Judge of the RTC, Branch 59, Lucena City, Roberto Paguia & Fernando Lasala, respondents. G.R. No. 80739, August 20, 1992.
“x x x.
Now, on the issue of possession:
Section 7 of Act No. 3135, as amended by Act No. 4118, provides that in case of extrajudicial foreclosure of mortgage, the court *** may issue as a matter of course a writ of possession in favor of the purchaser even during the redemption period, provided that a proper motion has been filed, a bond is approved, and no third person is involved.
Section 6 of the Act provides that where an extrajudicial sale is made, "redemption shall be governed by the provisions of sections 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."
Sections 464-466 of the Code of Civil Procedure were superseded by Sections 25-27 and Section 31 of Rule 39 of the Rules of Court, which in turn were replaced by Sections 29 to 31 and Section 35 of Rule 39 of the Revised Rules of Court.
Section 35 provides that "if no redemption be made within twelve (12) months after the sale, the purchaser, or his assignee, is entitled to a conveyance and the possession of property, . . . The possession of the property shall be given to the purchaser or last redemptioner by the same officer unless a third party is actually holding the property adversely to the judgment debtor."
To give effect to his right of possession, the purchaser must invoke the aid of the courts and ask for a writ of possession. He cannot simply take the law into his own hands and enter the property without judicial authorization. 6 We have consistently held that he need not bring a separate and independent suit for this purpose. 7 Nevertheless, it is essential that he ask for and be granted a writ of possession in order that he may be legally installed in the property he has bought.
Section 63 (b) of P.D. 1529, otherwise known as the Property Registration Decree, requires that in case of non-redemption, the purchaser at a foreclosure sale shall file with the Register of Deeds either a final deed of sale executed by the person authorized by virtue of the power of attorney embodied in the deed of mortgage or his sworn statement attesting to the fact of non-redemption. The Register of Deeds shall thereupon issue a new certificate in favor of the purchaser after the owner's duplicate certificate shall have been previously delivered and canceled.
In F. David Enterprises vs. Insular Bank of Asia and America, 8 this Court held:
It
is 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 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. Possession of the
land then becomes an absolute right of the purchaser as confirmed owner.
Upon proper application and proof of title, the issuance of the writ of
possession becomes a ministerial duty of the court. (Emphasis supplied).
In the case at bar, there is no showing that after the lapse of the redemption period without the petitioner having redeemed the lands, DBP executed an affidavit of consolidation of ownership of the subject properties. Neither has it filed with the Register of deeds a final deed of sale or a sworn statement attesting to the fact of non-redemption. The circumstance that the properties are still in the name of the petitioner shows that DBP has also not yet obtained a new certificate of title in its name. And neither does it appear that DBP, on the basis of its purchase of the lands at the foreclosure sale, ever secured a writ of possession to authorize its entry into the said lands.
Not having done any of these, DBP had as yet not acquired any perfected right of possession that it could transfer to the private respondents. And as the petitioner continued in actual possession of the subject premises, she could undoubtedly maintain an action for forcible entry against the private respondents when, not being armed with a court order or a writ of possession, they simply entered and took possession of the subject lands.
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