THIRD DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated MAR 6 2002.

G.R. No. 151816 (Jose Teofilo T. Mercado vs. Security Bank Corporation, et al.)

Petitioner assails the decision of the Court of Appeals dated November 12, 1999 as well as the denial resolution of its motion for reconsideration dated January 10, 2002 both of which dismissed the petition for lack of merit.

Sometime in May 1995, petitioner Jose Teofilo Mercado filed a complaint for Nullification of Extra-Judicial Foreclosure and auction Sale against private respondent Security Bank concerning the property he mortgaged with the said bank which is located at 36 Narra Avenue, South Forbes Park, Makati and covered by TCT No. 169833. The said complaint also prayed for the issuance of a writ of preliminary injunction to enjoin the Security Bank, the notary public, and the Register of Deeds of Makati City from consolidating in favor of the bank, the ownership over said property; and prayed for as well, was the payment of damages.

On June 23, 1995, Security Bank filed an answer with counterclaim.

After trial, the trial court rendered a decision dated July 10, 1998, the dispositive portion of which reads:

“39. WHEREFORE, the Court hereby renders judgment as follows:

ON THE AMENDED COMPLAINT

AND INJUNCTION

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39.1. The foreclosure held on May 18, 1994 by the defendant Atty. Hiltrudes Lani A. Solis of the Real Estate Mortgage of the property located at No. 36 Narra Avenue, South Forbes Park, City of Makati, covered by Transfer Certificate of Title No. 169833, Registry of Deeds of the City of Makati executed by the plaintiff Jose Teofilo T. Mercado in favor of Security Bank & Trust Company (Now the defendant Security Bank Corporation) on April 22, 1993 (Annex B, pp. 144-145, id.) is declared VOID.

39.2. Accordingly, the CERTIFICATE OF NOTARIAL SALE dated May 23, 1994, executed by the said defendant SOLIS in favor of SECURITY BANK & TUST COMPANY now the defendant SECURITY BANK CORPORATION (Exh. 22) is likewise declared VOID.

39.3. The defendants SOLIS and SECURITY BANK CORPORATION are ordered to pay, jointly and severally, to the plaintiff JOSE TEOFILO T, MERCADO, the following:

39.3.1. ONE MILLION PESOS

(P1,000,000.00) - As moral damages

39.3.2. ONE MILLION PESOS

(P1,000,000.00) - As attorney’s fees

39.3.3. The cost of the suit.

39.4. the defendants SECURITY BANK CORPORATION and the defendant REGISTER OF DEEDS are enjoined from consolidating the ownership of the said defendant SECURITY BANK CORPORATION over the said property covered by transfer Certificate of Title No. 169833.

39.6. the said plaintiff must post a bond of FIVE MILLION (P5,000,000.00) PESOS for the purpose mentioned in Section 4(b), Rule 58, 1997 Rules of Civil procedure.

39.7. the officer-in-charge shall issue the corresponding writ of preliminary injunction after the Court has approved the bond.

ON THE COUNTERCLAIM

39.8. The plaintiff JOSE TEOFILO T. MERCADO is ordered to pay the defendant SECURITY BANK CORPORATION the following:

39.8.1. THIRTY-FIVE MILLION PESOS (P35,000,000.00) - The amount of the loan covered by the Real Estate Mortgage dated April 22, 1993 and the Promissory Note dated April 22, 1993 (Exh. 25)

39.8.2. Seventeen (17%) percent of Thirty Five Million (P35,000,000.00) – per annum from December 24, 1993 until the said Thirty five Million Pesos (P35,000,000.00) is fully paid – as interest.

39.8.3. Twelve (12%) percent of the interest on the said Thirty five Million Pesos (P35,000,000.00) – per annum from June 13, 1995 until the said interest is fully paid – as interest on the interest.

39.8.4. Two (2%) percent of the Thirty Five Million Pesos (P35,000,000.00) and of the interest thereon as fixed in No. 39.8.2 hereof – per month from April 22, 1994 until the said Thirty Five Million Pesos (P35,000,000.00) is fully paid – as penalty.

39.8.5. The counterclaim for moral and exemplary damages and attorney’s fees is DISMISSED.

39.8.6. The counterclaim of the defendant REGISTER OF DEEDS is DISMISSED.

Private respondent Security Bank interposed an appeal which was eventually opposed and dismissed by the Court for failure to pay the docket fees.

For his part, petitioner did not file any appeal hence the decision of the lower court dated July 10, 1998 became final and executory.

Thereafter, proceeding from the final and executory decision of July 10, 1998, Security Bank filed a motion for the issuance of a writ of execution to enforce the decision of the court a quo on the counterclaim which the court granted on June 25, 1999. The issuance of this motion was opposed and questioned by petitioner before the appellate court.

On august 1, 1999, private respondent Security Bank through a certain Ms. Evylene Sison and Mr. Katigbak, pursuant to the trial court’s order, executed a deed entitled “Affidavit of Reconveyance”.

On September 14, 1999, the trial judge issued an order appointing a Special Sheriff to execute the part of decision relating to respondent Security Bank’s counterclaim only, an act as alleged by herein petitioner, as one which shows an inordinate interest and bias in favor of respondent Security Bank.

The appellate court in resolving the controversy found one core issue to be resolved; that is the question of whether or not he trial court committed grave abuse of discretion when it issued a writ of execution to enforce the decision on the counterclaim.

Petitioner asserts that it was error for the trial court to issue a writ of execution which enforces only that which is favorable to Security Bank, meaning the counterclaim, since the principal relief granted should have been the one to be have been first enforced and not the counterclaim.

The Court of Appeals believed otherwise. It held that the trial court judge did not commit any grave abuse of discretion when it issued the assailed order since the issuance of a writ of execution is a ministerial duty once a judgment has already become final and executory.

Hence, the instant petition which must likewise fail.

Section 1, Rule 39 of the 1997 Rules of Civil Procedure provides:

Section 1. Execution upon judgments or final orders – Execution shall issue as a matter of right, on motion, upon judgments or order that disposes of the action or proceeding upon the expiration of the period to appeal therefrom if no appeal has been duly perfected.

The provision is explicit on the matter. For while it is true that execution is already a matter of right once the judgment has become final and executory, the enforcement of such execution must be on motion. Thusly, it cannot be said that the trial court exhibited bias when it granted an order of execution since such order was only in response to the motion filed before it. It must be stressed that once execution becomes a matter of right, the court has no choice but to grant it since it becomes then a ministerial duty.

Moreover, if petitioner indeed believes that the principal relief granted should have been enforced first, he should also seasonable file a motion for issuance of a writ of execution.

WHEREFORE, there being no reversible error, petition is DENIED DUE COURSE.

SO ORDERED.

Very truly yours,

(Sgd.) JULIETA Y. CARREON

Clerk of Court