G.R. No. L-16598. May 31, 1961.
HON. FRANCISCO JOSE, GEORGE EDWARD KOSTER, INC., MACARIO OFILADA, and EXCHANGE INVESTMENT, LTD., petitioners, vs. JOSE C. ZULUETA and COURT OF APPEALS, respondents.

FACTS

A final and executory judgment ordered respondent Jose C. Zulueta to pay petitioner George Edward Koster, Inc. a principal sum plus stipulated interest. After partial execution, Zulueta paid the principal amount of P46,093.77. The corporation’s counsel issued a receipt stating it was “representing full payment of the principal obligation.” The judgment creditor, Koster, Inc., later assigned its right to the unpaid interest to petitioner Exchange Investment, Ltd., which was substituted as creditor. Exchange Investment then petitioned the trial court for an alias writ of execution to collect the interest. Zulueta opposed, claiming the interest had been condoned. The trial court, after hearing, granted the petition and issued the alias writ. Zulueta’s motion for reconsideration was denied on March 12, 1959, with notice served on March 17. Instead of appealing, Zulueta filed an original petition for certiorari with the Court of Appeals on April 18, 1959, which ruled in his favor, annulling the alias writ and finding condonation of interest.

ISSUE

Whether the Court of Appeals erred in granting Zulueta’s petition for certiorari despite the availability of an appeal as the proper remedy.

RULING

Yes. The Supreme Court reversed the Court of Appeals’ decision. The Court held that a writ of certiorari under Rule 67, Section 1 of the Rules of Court is only available when there is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law. The trial court’s orders directing the issuance of the alias writ of execution and denying the motion for reconsideration were final and appealable orders. Zulueta failed to perfect an appeal within the reglementary period after receiving notice of the denial on March 17, 1959. His petition for certiorari filed 32 days later could not substitute for a lost appeal. The loss of the right to appeal through his own inaction barred resort to certiorari. The exceptional circumstances where certiorari may be allowed despite an appeal—such as when execution has commenced and an appeal would be inadequate to prevent injustice—do not apply here because Zulueta’s right to appeal had already been extinguished and was no longer available when he filed his petition. Consequently, the Court did not reach the substantive issue of condonation. The orders of the trial court were reinstated.