GR L 21720; (January, 1967) (Digest)
G.R. No. L-21720 January 30, 1967
IFC SERVICE LEASING AND ACCEPTANCE CORPORATION, petitioner and appellee, vs. VENANCIO NERA, movant and appellant.
FACTS
The appellee, as mortgagee, extrajudicially foreclosed the real estate mortgage on the property of spouses Venancio Nera and Rosa F. Nera. The property was sold at public auction to the appellee as the highest bidder on October 27, 1961. The period of redemption expired on October 27, 1962, without the property being redeemed, leading to the consolidation of title in the appellee’s name and the issuance of a new Transfer Certificate of Title. On February 26, 1963, the lower court issued a writ of possession on the ex parte application of the appellee. The appellant filed motions to set aside the writ of possession and the auction sale, arguing that the court had no jurisdiction to issue the writ after the redemption period and that the sale price was grossly inadequate. The lower court denied these motions.
ISSUE
Whether, in cases of extrajudicial foreclosure of real estate mortgages, a regular action must be instituted to secure possession of the property sold after the expiration of the redemption period, or if the court can issue a writ of possession upon ex parte application.
RULING
The court ruled that a regular action is not necessary. The applicable provision is Section 6 of Act No. 3135 , which makes the rules on redemption under the Rules of Court applicable. Specifically, Section 35 of Rule 39 of the Revised Rules of Court provides that if no redemption is made within twelve months after the sale, the purchaser is entitled to a conveyance and possession of the property. The court held that if it has the power under Section 7 of Act No. 3135 to issue a writ of possession during the redemption period upon ex parte application, there is no reason why it should not have the same power after the expiration of that period, especially when a new title has already been issued in the purchaser’s name. The case of Luna vs. Encarnacion, cited by the appellant, is inapplicable as it involves the foreclosure of a chattel mortgage under a different law. The order of the lower court denying the appellant’s motion to set aside the writ of possession and the auction sale was affirmed.