This petition for review on certiorari,^[1] seeks to reverse and set aside the decision dated November 21, 2002 and subsequent ruling on motion for reconsideration of the Court of Appeals (CA) in CA-G.R. SP No. 62325.^[2] The CA decision affirmed the order of the Regional Trial Court (RTC) of Makati City, Branch 65,^[3] dismissing the petition filed by Metropolitan Bank & Trust Company (Metrobank) for the issuance of a writ of possession of a condominium unit it had previously foreclosed. This dismissal was based on the finding that the petition contained a false certification against forum shopping.

FACTUAL ANTECEDENTS

Respondent Manfred Jacob De Koning (De Koning) obtained a loan from Metrobank in the principal amount of Two Million, Nineteen Thousand Pesos (P2,019,000.00), evidenced by promissory note No. TLS/97-039/382599 dated July 24, 1997. To secure the payment of this loan, De Koning executed a real estate mortgage (REM) in favor of Metrobank dated July 22, 1996 over a condominium unit and all its improvements. The unit is located at Unit 1703 Cityland 10 Tower 1, H.V. Dela Costa Street, Makati City, and is covered by Condominium Certificate of Title No. 10681.

When De Koning failed to pay his loan despite demand, Metrobank instituted extrajudicial foreclosure proceedings against the REM. Metrobank was the highest bidder at the public auction of the condominium unit held on November 24, 1998 and a Certificate of Sale was issued in the bank's favor. Metrobank duly registered this Certificate of Sale with the Registry of Deeds for Makati City on January 18, 2000.

The redemption period lapsed without De Koning redeeming the property. Thus, Metrobank demanded that he turn over possession of the condominium unit. When De Koning refused, Metrobank filed on July 28, 2000 with the RTC Makati, Branch 65, an ex parte petition for a writ of possession over the foreclosed property, pursuant to Act No. 3135, as amended.

On August 1, 2000, the lower court issued an order setting the ex parte hearing of Metrobank's petition and directing that a copy of the order be given to De Koning to inform him of the existence of the proceedings.

During the scheduled ex parte hearing on August 18, 2000, De Koning's counsel appeared and manifested that he filed a motion to dismiss on the ground that Metrobank's petition violated Section 5, Rule 7 of the Rules of Court (Rules)^[4] which requires the attachment of a certification against forum shopping to a complaint or other initiatory pleading. According to De Koning, Metrobank's petition for the issuance of a writ of possession involved the same parties, the same issues and the same subject matter as the case he had filed on October 30, 1998 with the RTC of Makati,^[5] to question Metrobank's right to foreclose the mortgage. De Koning also had a pending petition for certiorari with the CA,^[6] which arose from the RTC case he filed. When Metrobank failed to disclose the existence of these two pending cases in the certification attached to its petition, it failed to comply with the mandatory requirements of the Rules so that its petition should be dismissed.

The RTC agreed with De Koning and dismissed Metrobank's petition in its September 18, 2000 order on the ground De Koning cited, i.e.,for having a false certification of non-forum shopping. The lower court denied Metrobank's motion for reconsideration. Metrobank thus elevated the matter to the CA on a petition for certiorari on January 5, 2001.

The CA affirmed the dismissal of Metrobank's petition. It explained that Section 5, Rule 7 of the Rules is not limited to actions, but covers any "initiatory pleading" that asserts a claim for relief. Since Metrobank's petition for writ of possession is an initiatory pleading, it must perforce be covered by this rule. Thus, Metrobank's failure to disclose in the verification and certification the existence of the two cases filed by De Koning, involving the issue of Metrobank's right to foreclose on the property, rendered the petition dismissible.

The CA denied Metrobank's subsequent motion for reconsideration. Hence, this petition for review on certiorari, raising the following issues:

ISSUES

I.
THE COURT OF APPEALS AND THE LOWER COURT, CONTRARY TO THE APPLICABLE DECISIONS OF THIS HONORABLE COURT, RULED THAT THE EX PARTE PETITION FOR THE ISSUANCE OF A WRIT OF POSSESSION IS AN INITIATORY PLEADING ASSERTING A CLAIM.

II.
THE COURT OF APPEALS, IN UPHOLDING THE RULING OF THE LOWER COURT, DELIBERATELY IGNORED THE FACT THAT THE PETITION FOR THE ISSUANCE OF A WRIT OF POSSESSION IS EX PARTE IN NATURE.

III.
THE COURT OF APPEALS COMMITTED A MISAPPREHENSION OF FACTS.

Metrobank claims that an ex parte petition for the issuance of a writ of possession is not an initiatory pleading asserting a claim. Rather, it is a mere incident in the transfer of title over the real property which was acquired by Metrobank through an extrajudicial foreclosure sale, in accordance with Section 7 of Act No. 3135, as amended. Thus, the petition is not covered by Section 5, Rule 7 of the Rules and a certification against forum shopping is not required.

Metrobank further argues that considering the ex parte nature of the proceedings, De Koning was not even entitled to be notified of the resulting proceedings, and the lower court and the CA should have disregarded De Koning's motion to dismiss.

Lastly, Metrobank posits that the CA misapprehended the facts of the case when it affirmed the lower court's finding that Metrobank's petition and the two cases filed by De Koning involved the same parties. There could be no identity of parties in these cases for the simple reason that, unlike the two cases filed by De Koning, Metrobank's petition is a proceeding ex parte which did not involve De Koning as a party. Nor could there be an identity in issues or subject matter since the only issue involved in Metrobank's petition is its entitlement to possess the property foreclosed, whereas De Koning's civil case involved the validity of the terms and conditions of the loan documents. Furthermore, the extra-judicial foreclosure of the mortgaged property and De Koning's petition for certiorari with the CA involved the issue of whether the presiding judge in the civil case acted with grave abuse of discretion when he denied De Koning's motion to set for hearing the application for preliminary injunction.

De Koning, in opposition, maintains that Metrobank's petition was fatally defective for violating the strict requirements of Section 5, Rule 7 of the Rules. As noted by both the lower court and the CA's ruling that Metrobank failed to disclose the two pending cases he previously filed before the RTC and the CA, which both involved the bank's right to foreclose and, ultimately, the bank's right to a writ of possession by virtue of foreclosure.

De Koning also asserts that Metrobank should have appealed the lower court's decision and not filed a special civil action for certiorari since the order being questioned is one of dismissal and not an interlocutory order. According to De Koning, since the filing of a petition for certiorari cannot be a substitute for a lost appeal and does not stop the running of the period of appeal, the questioned RTC order has now become final and executory and the present petition is moot and academic.

THE COURT'S RULING

We find Metrobank's petition meritorious.

Procedural Issue

Section 1, Rule 65 of the Rules, clearly provides that a petition for certiorari is available only when "there is no appeal, or any plain, speedy and adequate remedy in the ordinary course of law." A petition for certiorari cannot coexist with an appeal or any other adequate remedy. The existence and the availability of the right to appeal are antithetical to the availment of the special civil action for certiorari. As we have long held, these two remedies are "mutually exclusive."^[7]

Admittedly, Metrobank's petition for certiorari before the CA assails the dismissal order of the RTC and, under normal circumstances, Metrobank should have filed an appeal.

However, where the exigencies of the case are such that the ordinary methods of appeal may not prove adequate -- either in point of promptness or completeness, so that a partial if not a total failure of justice could result - a writ of certiorari may still be issued.^[8] Other exceptions, Justice Florenz D. Regalado listed are as follows:

(1) where the appeal does not constitute a speedy and adequate remedy (Salvadades vs. Pajarillo, et al., 78 Phil. 77), as where 33 appeals were involved from orders issued in a single proceeding which will inevitably result in a proliferation of more appeals (PCIB vs. Escolin, et al., L-27860 and 27896, Mar. 29, 1974); (2) where the orders were also issued either in excess of or without jurisdiction (Aguilar vs. Tan, L-23600, Jun 30, 1970, Cf. Bautista, et al. vs. Sarmiento, et al., L-45137, Sept. 231985); (3) for certain special consideration, as public welfare or public policy (See Jose vs. Zulueta, et al. -16598, May 31, 1961 and the cases cited therein); (4) where in criminal actions, the court rejects rebuttal evidence for the prosecution as, in case of acquittal, there could be no remedy (People vs. Abalos, L029039, Nov. 28, 1968); (5) where the order is a patent nullity (Marcelo vs. De Guzman, et al., L-29077, June 29, 1982); and (6) where the decision in the certiorari case will avoid future litigations (St. Peter Memorial Park, Inc. vs. Campos, et al., L-38280, Mar. 21, 1975).^[9] [Emphasis supplied.]

Grave abuse of discretion may arise when a lower court or tribunal violates or contravenes the Constitution, the law or existing jurisprudence.^[10] As will be discussed in greater detail below, the RTC decision dismissing Metrobank's petition was patently erroneous and clearly contravened existing jurisprudence. For this reason, we cannot fault Metrobank for resorting to the filing of a petition for certiorari with the CA to remedy a patent legal error in the hope of obtaining a speedy and adequate remedy.

Nature of a petition for a writ of possession

A writ of possession is defined as "a writ of execution employed to enforce a judgment to recover the possession of land. It commands the sheriff to enter the land and give its possession to the person entitled under the judgment."^[11]

There are three instances when a writ of possession may be issued: (a) in land registration proceedings under Section 17 of Act No. 496; (b) in judicial foreclosure, provided the debtor is in possession of the mortgaged realty and no third person, not a party to the foreclosure suit, had intervened; and (c) in extrajudicial foreclosure of a real estate mortgage under Section 7 of Act No. 3135, as amended by Act No. 4118.^[12] The present case falls under the third instance.

The procedure for obtaining a writ of possession in extrajudicial foreclosure cases is found in Section 7 of Act No. 3135, as amended by Act No. 4118, which states:

Section 7. In any sale made under the provisions of this Act, the purchaser may petition the Court of First Instance of the province or place where the property or any part thereof is situated, to give him possession thereof during the redemption period, furnishing bond in an amount equivalent to the use of the property for a period of twelve months, to indemnify the debtor in case it be shown that the sale was made without violating the mortgage or without complying with the requirements of this Act. Such petition shall be made under oath and filed in form of an ex parte motion in the registration or cadastral proceedings if the property is registered, or in special proceedings in the case of property registered under the Mortgage Law or under section one hundred and ninety-four of the Administrative Code, or of any other real property encumbered with a mortgage duly registered in the office of any register of deeds in accordance with any existing law, and in each case the clerk of the court shall, upon the filing of such petition, collect the fees specified in paragraph eleven of section one hundred and fourteen of Act Numbered Four hundred and ninety-six, as amended by Act Numbered Twenty-eight hundred and sixty-six, and the court shall, upon approval of the bond, order that a writ of possession issue, addressed to the sheriff of the province in which the property is situated, who shall execute said order immediately.

Based on this provision, a writ of possession may issue either (1) within the one year redemption period, upon the filing of a bond, or (2) after the lapse of the redemption period, without need of a bond.^[13] In order to obtain a writ of possession, the purchaser in a foreclosure sale must file a petition, in the form of an ex parte motion, in the registration or cadastral proceedings of the registered property. The reason why this pleading, although denominated as a petition, is actually considered a motion is best explained in Sps. Arquiza v. CA,^[14] where we said:

The certification against forum shopping is required only in a complaint or other initiatory pleading. The ex parte petition for the issuance of a writ of possession filed by the respondent is not an initiatory pleading. Although the private respondent denominated its pleading as a petition, it is, nonetheless, a motion. What distinguishes a motion from a petition or other pleading is not its form or the title given by the party executing it, but rather its purpose. The office of a motion is not to initiate new litigation, but to bring a material but incidental matter arising in the progress of the case in which the motion is filed. A motion is not an independent right or remedy, but is confined to incidental matters in the progress of a cause. It relates to some question that is collateral to the main object of the action and is connected with and dependent upon the principal remedy. An application for a writ of possession is a mere incident in the registration proceeding. Hence, although it was denominated as a "petition," it was in substance merely a motion. Thus, the CA correctly made the following observations:

Such petition for the issuance of a writ of possession is filed in the form of an ex parte motion, inter alia, in the registration or cadastral proceedings if the property is registered. Apropos, as an incident or consequence of the original registration or cadastral proceedings, the motion or petition for the issuance of a writ of possession, not being an initiatory pleading, dispels the requirement of a forum-shopping certification. Axiomatic is that the petitioner need not file a certification of non-forum shopping since his claims are not initiatory in character (Ponciano vs. Parentela, Jr., 331 SCRA 605 [2000]) [Emphasis supplied.]

The right to possess a property merely follows the right of ownership. Thus, after the consolidation of title in the buyer's name for failure of the mortgagor to redeem, the writ of possession becomes a matter of right and its issuance to a purchaser in an extrajudicial foreclosure is merely a ministerial function.^[15] Sps. Arquiza v. CA further tells us:^[16]

Indeed, it is well-settled that an ordinary action to acquire possession in favor of the purchaser at an extrajudicial foreclosure of real property is not necessary. There is no law in this jurisdiction whereby the purchaser at a sheriff's sale of real property is obliged to bring a separate and independent suit for possession after the one-year period for redemption has expired and after he has obtained the sheriff's final certificate of sale. The basis of this right to possession is the purchaser's ownership of the property. The mere filing of an ex parte motion for the issuance of the writ of possession would suffice, and no bond is required. [Emphasis supplied.]

Since a petition for a writ of possession under Section 7 of Act No. 3135, as amended, is neither a complaint nor an initiatory pleading, a certificate against non-forum shopping is not required. The certificate that Metrobank attached to its petition is thus a superfluity that the lower court should have disregarded.

No intervention allowed in ex parte proceedings

We also find merit in Metrobank's contention that the lower court should not have allowed De Koning to intervene in the proceedings.

A judicial proceeding, order, injunction, etc., is ex parte when it is taken or granted at the instance and for the benefit of one party only, and without notice to, or contestation by, any person adversely interested.^[17]

Given that the proceeding for a writ of possession, by the terms of Section 7 of Act No. 3135, is undoubtedly ex parte in nature, the lower court clearly erred not only when it notified De Koning of Metrobank's ex parte petition for the writ of possession, but also when it allowed De Koning to participate in the proceedings and when it took cognizance and upheld De Koning's motion to dismiss.

As we held in Ancheta v. Metropolitan Bank and Trust Company, Inc.:^[18]

In GSIS v. Court of Appeals, this Court discussed the inappropriateness of intervening in a summary proceeding under Section 7 of Act No. 3135:

The proceedings in which respondent Knecht sought to intervene is an ex parte proceeding pursuant to Sec. 7 of Act No. 3135, and, as pointed out by petitioner, is a "judicial proceeding brought for the benefit of one party only, and without notice to, or consent by any person adversely interested (Stella vs. Mosele, 19 N.E., 2d. 433, 435, 299 III App. 53; Imbrought v. Parker, 83 N.E. 2d 42, 43, 336 III App. 124; City Nat. Bank & Trust Co. v. Aavis Hotel Corporation, 280 III App. 247), x x x or a proceeding wherein relief is granted without an opportunity for the person against whom the relief is sought to be heard" (Restatement, Torts, S 674, p. 365, Rollo).

xxx

Intervention is defined as "a proceeding in a suit or action by which a third person is permitted by the court to make himself a party, either joining plaintiff in claiming what is sought by the complaint, or uniting with defendant in resisting the claims of plaintiff, or demanding something adversely to both of them; the act or proceeding by which a third person becomes a party in a suit pending between others; the admission, by leave of court, of a person not an original party to pending legal proceedings, by which such person becomes a party thereto for the protection of some right of interest alleged by him to be affected by such proceedings" (33 C.J., 477, cited in Eulalio Garcia, et al. vs. Sinforoso David, et al., 67 Phil. 279, at p. 282).

Action, under Rule 2, Sec. 1, is defined as an ordinary suit in a court of justice, by which one party prosecutes another for the enforcement or protection of a right, or the prevention or redress of a wrong.

From the aforesaid definitions, it is clear that intervention contemplates a suit, and is therefore exercisable during a trial and, as pointed out by petitioner is one which envisions the introduction of evidence by the parties, leading to the rendition of the decision in the case (p. 363, Rollo). Very clearly, this concept is not that contemplated by Sec. 7 of Act No. 3135, whereby, under settled jurisprudence, the Judge has to order the immediate issuance of a writ of possession 1) upon the filing of the proper motion and 2) the approval of the corresponding bond. The rationale for the mandate is to allow the purchaser to have possession of the foreclosed property without delay, such possession being founded on his right of ownership. A trial which entails delay is obviously out of the question. [Emphasis supplied.]

WHEREFORE, premises considered, we GRANT the petition. The Decision of the Court of Appeals in CA-G.R. SP No. 62325 dated November 21, 2002, as well as the orders of the Regional Trial Court of Makati City, Branch 65 in LRC Case No. M-4068 dated September 18, 2000 and October 23, 2000, is REVERSED and SET ASIDE. LRC Case No. M-4068 is ordered remanded to the Regional Trial Court of Makati City, Branch 65, for further proceedings and proper disposition. Costs against respondent Manfred Jacob De Koning.

SO ORDERED.

Carpio, (Chairperson), Leonardo-De Castro, Del Castillo, and Abad, JJ., concur.

---

^[1] Dated June 4, 2003; rollo, pp. 10-42.

^[2] Penned by Associate Justice Bernardo P. Abesamis, with the concurrence of Associate Justice Juan Q. Enriquez, Jr. and Associate Justice Edgardo F. Sundiam; id. at 48-55.

^[3] Id. at 56.

^[4] Sec. 5. Certification against forum shopping. - The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.

Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions.

^[5] Docketed as Civil Case No. 98-2629.

^[6] Docketed as CA-G.R. SP No. 53546.

^[7] Ley Construction and Development Corporation v. Hyatt Industrial Manufacturing Corporation, 393 Phil. 633 (2000).

^[8] Land Bank of the Philippines v. Court of Appeals, 456 Phil. 755 (2003).

^[9] REMEDIAL LAW COMPENDIUM, Volume One, p. 708, (1997).

^[10] Choa v. Choa, 441 Phil. 175 (2002).

^[11] BLACK'S LAW DICTIONARY, 5th ed., 1979, p. 1444.

^[12] Sps. Ong v. CA, 388 Phil. 857 (2000).

^[13] Navarra v. CA, G.R. No. 86237, December 17, 1991, 204 SCRA 850; UCPB v. Reyes, G.R. No. 95095, February 7, 1991, 193 SCRA 756; Banco Filipino Savings and Mortgage Bank v. Intermediate Appellate Court, 225 Phil. 530 (1986); Marcelo Steel Corp. v. Court of Appeals, 153 Phil. 362 (1973); De Garcia v. San Jose, 94 Phil. 623 (1954).

^[14] 498 Phil. 793 (2005).

^[15] Sps. Yulienco v. Court of Appeals, 441 Phil. 397 (2002); A.G. Development Corp. v. CA, 346 Phil. 136 (1997); Navarra v. CA, G.R. No. 86237, December 17, 1991, 204 SCRA 850.

^[16] Supra note 10.

^[17] Supra note 11, p. 517.

^[18] G.R. No. 163410, September 16, 2005, 470 SCRA 157.