On April 14, 1975, the petitioner, Laura Mateo, filed an action in the Regional Trial Court of Pasig, Rizal. (1) to annul a deed of sale of a half-hectare parcel of land in Las Piñas which she had executed in favor of the spouses, Adela and Cecilia Mendoza, in 1970, and (2) to cancel the Mendozas' TCT No. 275004 with damages. The trial court, in a decision dated October 10, 1983, dismissed the complaint on the grounds that the action had prescribed and that it was "unfounded and frivolous" (p. 31, Rollo). The plaintiff filed a notice of appeal on October 28, 1983 signifying her intention to appeal the decision to the Court of Appeals.

Three (3) years later, the trial court discovered that the records had not been forwarded to the Court of Appeals, so on January 16, 1986, it ordered the clerk of court to do so.

Three (3) more years passed without the clerk of court nor the appellant having taken any steps to ele­vate the records to the Court of Appeals. Consequently, the defendants (Mendoza spouses) through counsel, filed in the trial court on April 10, 1989 a Motion to Disal­low Appeal. The plaintiff opposed the motion. She alleged that the delay in the transmittal of the records of the case to the appellate court was "not attributa­ble to the plaintiff." Furthermore, "if there are missing papers or documents in the records x x x plaintiff is very much ready and willing to give whatever assistance [is needed] in reconstituting said missing papers" (p. 36, Rollo).

On April 14, 1989, the Court issued an order granting the plaintiff ten (10) days "within which to furnish this Court with copies of the missing tran­scripts of stenographic notes so that the records of this case can be elevated to the Court of Appeals" (p. 37, Rollo).

On May 16, 1989, the defendants filed a Second Motion to Disallow Appeal which the plaintiff did not oppose despite the Court's order for her to comment thereon.

Since the plaintiff failed to live up to her undertaking "to give whatever assistance [was needed] in reconstituting said missing papers," (p. 37, Rollo) the trial court on June 19, 1989, granted the defendants' second motion to disallow the appeal.

Plaintiff's counsel filed a motion for reconsideration explaining that this failure to comply with his undertaking to reconstitute some missing records of the case was due to the fact that he had been suffering from urinary tract infection. Moreover, he was never informed what the missing records were. He argued that the court was without jurisdiction and gravely abused its discretion in disallowing his client's appeal be­cause the appeal had already been perfected, hence, it could no longer be disallowed; what remained to be done was only the transmittal of the records to the appellate court which was solely the duty of the clerk of court and court personnel. He further alleged that the delay in the transmittal of the records on account of some allegedly missing transcripts was due to the laxity and dereliction of the court personnel in handling said records.

On January 25, 1990, the trial court denied the motion for reconsideration. It observed that despite her promise "to give whatever assistance [was needed] in reconstituting some missing papers," the plaintiff failed to live up to her undertaking. She and her counsel also failed to show up at several conferences which the Court had scheduled, namely, on August 24, 1989, then again on September 6, 1989, September 19, 1989, October 10, 1989, October 25, 1989, November 15, 1989, December 1, 1989 and January 5, 1990. The trial court's observations are quoted hereunder:

"x x x. On several occasions, the Clerk in Charge has brought the record of this case to the Appeal Section of the Office of the Clerk of this Court for transmittal to the Court of Appeals but was refused acceptance because some transcripts of stenographic notes are missing, and the Court of Appeals does not accept record of cases on appeal that are incomplete. These facts were brought to the attention of plaintiff and she repeatedly undertook, thru counsel, to complete the records so that the same may be accepted by the Court of Appeals and her appeal duly prosecuted. To this very late date, plaintiff has failed to live up to her undertakings.

"Completing the record of a case that is being appealed should be the concern of the appellant, because if the decision appealed from is not disturbed, she stands to lose. Plaintiff's inaction and complacency in the case at bar is understandable, as she is in possession and enjoyment of the property subject of the deed of sale and torrens title sought to be nullified in the case at bar. She would naturally be contented in folding her arms and allow the record of this case to gather dust in this Court and pray that the said record may eventually get lost, thereby negating the decision adverse to her." (pp. 46-47, Rollo.)

Mateo's motion for reconsideration of this order was denied by the court on May 28, 1990.

On August 31, 1990, Mateo filed a petition for certiorari and mandamus in the Court of Appeals, CA-G.R SP No. 22679, "Laura Mateo, petitioner vs. Hon. Eutropio Migriño, Adela Mendoza, Cecilio Mendoza and the Branch Sheriff, Branch 151, RTC, Pasig, Metro Manila" praying that the respondents be restrained from enforcing the decision in Civil Case No. 21071 of Branch 151 of the RTC at Pasig, Metro Manila; that the orders dated June 19, 1989, January 25, 1990 and May 28, 1990 of respondent Judge be annulled, and that he be ordered to elevate the records of said Civil Case No. 21071 together with all the evidence, both oral and documentary, for review by the Court of Appeals.

On November 8, 1990, a decision was rendered by the Court of Appeals, Tenth Division,* dismissing the petition. The Appellate Court held:

"On the facts of this case, the petitioner may be viewed as having abandoned her appeal. She had appealed the respondent Court's decision on October 28, 1983, and had failed to prosecute her appeal until the private respondents, to protect their own interest, were compelled to file their motion to disallow appeal of April 10, 1989, a period of almost 6 years during which, the appeal had lain frozen and forgotten. The petitioner blames the Clerk of Court for this delay, but it is a hollow contention as shown in the text of the contested order above quoted. The peti­tioner's advertence to the lack of competence on the part of the respondent Court has an empty ring. In situations involving shorter period of time, the Highest Court of the land had unmistakably spoken and expressed condemnation of such delays. It had also made clear that the responsibility for the transmittal of records to the appellate court, in other words, the responsi­bility for making the appeal move, belongs to the appealing party and cannot be passed off to the Clerk of Court." (p. 77, Rollo.)

The Court of Appeals cited the following ruling of this Court in Arcega, et al. vs. Court of Appeals, et al., 166 SCRA 773, 776:

"x x x. It cannot be said that the respondent Court of Appeals abused its discretion or exceeded its jurisdiction in dismissing the appeal of the petitioners for failure to prosecute, since it appears that the petitioners did nothing to effect or facilitate the transmittal of the records of the case to the appellate court for almost two (2) years from the issuance of the order to elevate said records to the appellate court. The Court has held that, while it is the duty of the clerk of the lower court to transmit the records of an appealed case to the appellate court, it is also the duty of the appellant to make the clerk of court act, and the failure of the clerk to perform his legal duty is no justification for the appellant's failure to perform his, and he cannot justify his failure by saying that the fault was that of the clerk of the lower court."

The Court of Appeals recalled that in Fagtanac, et al. vs. Court of Appeals, et al., 22 SCRA 1227, 1234, we similarly ruled:

"The negligence of private respondents in prosecuting their appeals in these cases is palpably clear. Their failure to assist the courts of justice to dispose of these cases with reasonable dispatch is a sufficient reason to take away from them their right to have the alleged errors in the appealed judgment corrected. They delayed the administration of justice by their delay in prosecuting their appeals. And this, in spite of the fact that the civil suit was commenced on June 5, 1951, and the land registration case, on September 14, 1951. In this situation, the spirit of the Rules of Court forbids that efficacy of the administration of justice be shackled by appellants' failure to prosecute the appeals. The rule in this respect is to be held rigid. Failure of an appellant to so prosecute must be reckoned against him. It would be a travesty in the administration of justice if we are to order now the return of the records to the lower court just to complete the records on appeal; to procure approval of the amended record still to be presented by private respondents in the land registration case; and thereafter to elevate the cases once again to the appellate court for resolution of the appeals.

"Delays in litigation have always been a bane in our judicial system. And we have observed a growing tendency of defeated suitors and their lawyers to disregard their duties under the Rules of Court, in the hope that they may stall the final day of reckoning. These are the considerations that now impel this Court to make a policy state­ment that failure to prosecute wilI not be countenanced."

We find no reversible error in the decision of the Court of Appeals. Indeed, while the transmittal of the records of an appealed case to the appellate court is the duty of the clerk of court of the trial court (Sec. 6, Rule 40, Rules of Court), for the simple reason that said court employee is the custodian of those records and is responsible for their safety and integrity, the speedy prosecution of the appeal is principally the responsibility of the appellant, rather than of the personnel of the trial court. It is the appellant, not the trial court, that is presumed to be interested in the review and reversal of the latter's decision. It is presumed that the appellant desires a speedy resolution of his appeal and swift rectification of the errors in the appealed decision. It behooves the appellant to be vigilant for the protection of his right. He should take it upon himself to call the attention of the trial court to any delay in the transmittal of the records of his case. As we said in Estela vs. CA, 185 SCRA 732, 738:

"We cannot subscribe to peti­tioner's gratuitous statement that 'as the rule now exists, the appel­lant is justified if he merely 'folds his hands' after the trial judge has ordered that the records of the case be transmitted to the appellate court.'

"Conceding to the point that is the clerk of court who is primarily responsible for seeing to it that the records of appealed cases are properly sent to the appellate court without delay (and having failed to do so subjects him to administrative liability), it behooves the litigants to be more vigilant of their rights. They should take it upon themselves to call the attention of the trial court as to any delay in action over their cases."

Indeed, if the appellant does nothing to press his appeal, it may safely be concluded that he believes the judgment of the trial court to be correct and his appeal aims to accomplish nothing more than mere delay in the execution of the adverse judgment, certainly unfair to the appellee who is denied the enjoyment of the fruits of his victory in the case as long as the appeal is not resolved.

From the records of this case, it is perfectly clear that such was the purpose sought to be achieved by the petitioner's six-year delay in prosecuting her appeal. The trial court correctly disallowed her appeal and the Court of Appeals committed no reversible error in affirming the action of the trial court.

The general rule, that the trial court loses jurisdiction over a case after the perfection of the appeal^[1], hence, a motion to dismiss the appeal should be filed in the appellate court, not in the trial court, presupposes that the record on appeal had been transmit­ted to the appellate court. In this case, however, the motion to dismiss the appeal or to declare it abandoned, was not, and could not, be filed in the Court of Appeals because there was no record on appeal in the appellate court to speak of, Mateo's "appeal" was not docketed there. The records were still in the trial court. And even assuming that Mateo's appeal was perfected upon the filing of her notice of appeal, the trial court was not entirely divested of jurisdiction over the case. Under Section 9, Rule 41 Rules of Court, it retained jurisdiction "to issue orders for the protection and preservation of the rights of the parties prior to the transmittal of the record on appeal to the appellate court." The Court of Appeals' affirmance of the trial court's order declaring the appeal abandoned, cured whatever defect there might have been on the trial court's jurisdiction to act on the appellees' motion to dismiss the appeal.

WHEREFORE, the petition for review is DENIED for lack of merit. This decision is immediately executory.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Bidin, Regalado, Davide, Jr., Romero, Nocon, Melo, and Quiason, JJ., concur.
Bellosillo, J., join J. Padilla in his dissenting opinion.

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* Justice Nathaniel P. De Pano, Jr. as the ponente, with Justices Jorge S. Imperial and Jainal D. Rasul, concurring.

^[1] Sec. 9, Rule 41, Rules of Court.

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