SECOND DIVISION
[G.R. No. 256449. July 12, 2021.]
YU DY LEE SY, JOINED BY HER HUSBAND PATRICK CHUNG, DOING BUSINESS UNDER THE NAME AND STYLE 'HABEST MARKETING' REP. BY ITS GEN. MANAGER: LINDBERGH YU CHUNG, petitioners, vs.NESTOR TANZO, TERESITA TANZO, MICHAEL TANZO, ET AL., respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Second Division, issued a Resolution dated12 July 2021which reads as follows:
"G.R. No. 256449 (Yu Dy Lee Sy, joined by her husband Patrick Chung, doing business under the name and style 'Habest Marketing' rep. by its Gen. Manager: Lindbergh Yu Chung v. Nestor Tanzo, Teresita Tanzo, Michael Tanzo, et al.). — The Court resolves to GRANT petitioners Yu Dy Lee and Patrick Chung's (petitioners) motion for extension 1 of fifteen (15) days from the expiration of the reglementary period within which to file a petition for review on certiorari.
After a judicious study of the case, the Court resolves to DENY the instant petition 2 and AFFIRM the Resolutions dated September 19, 2019 3 and February 8, 2021 4 of the Court of Appeals (CA) in CA-G.R. SP No. 158121 for failure of petitioners to show that the CA committed any reversible error in dismissing their petition.
As correctly ruled by the CA, petitioners availed of the wrong remedy when it filed a petition for review under Rule 42 of the Rules of Court to assail the Orders dated August 15, 2018 5 and October 4, 2018 6 of the Regional Trial Court of Marikina City, Branch 193 (RTC) in Civil Case No. 05-1061-MK (assailed Orders). Notably, the assailed Orders pertain to the issuance of a writ of execution with respect to the dismissal of the main case as to respondents Tommy and Myrna Tanzo (respondents), as well as the directive to petitioners to return Transfer Certificate of Title No. T-33702 to the former. However, no appeal may be taken from an order of execution; instead, petitioners should have filed a petition for certiorari under Rule 65 of the Rules of Court. 7 In this regard, petitioners' argument that the CA should have treated its petition as a special civil action of certiorari under Rule 65 deserves scant consideration. The petitioners do not ascribe any action on the part of the RTC constituting grave abuse of discretion in the issuance of the writ of execution. Rather, they are indirectly assailing the correctness of the basis thereof, i.e., the final and executory decision of the RTC with respect to respondents. It is axiomatic that certiorari is not a substitute for a lapsed or lost appeal. 8 It is undisputed that after petitioners' motion for partial reconsideration 9 of the main decision was denied by the RTC in its Order 10 dated May 7, 2018, petitioners no longer filed a Notice of Appeal to question the same. Hence, the dismissal of the case with respect to respondents had already become final and executory. 'It is settled that a decision becomes final as against a party who does not appeal the same.' 11 Once a judgment has been rendered final and executory from the expiration of the period to appeal, execution becomes a matter of right. 12 Hence, the CA correctly affirmed the RTC's Order dated August 15, 2018 issuing the writ of execution in this instance. AIDSTE
SO ORDERED." (Lopez, J., J., designated additional member per Special Order No. 2822 dated April 7, 2021.)
By authority of the Court:
(SGD.) TERESITA AQUINO TUAZONDivision Clerk of Court
Footnotes
1.Rollo, pp. 3-4.
2.Id. at 38-62.
3.Id. at 10-17. Penned by Associate Justice Louis P. Acosta with Associate Justices Apolinario D. Bruselas, Jr. and Nina G. Antonio-Valenzuela, concurring.
4.Id. at 31-36.
5.Id. at 114-115. Penned by Judge Alice C. Gutierrez.
6.Id. at 116.
7. Section 1 of Rule 41 of Rules of Court provides:
SECTION 1. Subject of Appeal. — An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable.
No appeal may be taken from:
xxx xxx xxx
(e) An order of execution;
xxx xxx xxx
In any of the foregoing circumstances, the aggrieved party may file an appropriate special civil action as provided in Rule 65.
8. See Balayan v. Acorda, 523 Phil. 305, 309 (2006).
9.Rollo, pp. 149-153.
10.Id. at 158-159.
11.WT Construction, Inc. v. The Province of Cebu, 769 Phil. 848, 859-860 (2015).
12. Section 1, Rule 39 of the Rules of Court provides:
SECTION 1. Execution upon Judgments or Final Orders. — Execution shall issue as a matter of right, on motion, upon a judgment 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.
If the appeal has been duly perfected and finally resolved, the execution may forthwith be applied for in the court of origin, on motion of the judgment obligee, submitting therewith certified true copies of the judgment or judgments or final order or orders sought to be enforced and of the entry thereof, with notice to the adverse party.
The appellate court may, on motion in the same case, when the interest of justice so requires, direct the court of origin to issue the writ of execution.