Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 180587

March 20, 2009

SIMEON CABANG, VIRGINIA CABANG and VENANCIO CABANG ALIAS

"DONDON", Petitioners,
vs.
MR. & MRS. GUILLERMO BASAY, Respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari under Rule 45 of the Rules of Court seeks to annul and set
aside the Decision of the Court of Appeals in CA-G.R. CV No. 767551 dated May 31, 20072
which reversed the Order3 of the Regional Trial Court of Molave, Zamboanga Del Sur, Branch
23 in Civil Case No. 99-20-127 which denied respondents motion for execution on the ground
that petitioners family home was still subsisting. Also assailed is the Resolution dated
September 21, 2007 denying the motion for reconsideration.
The facts as summarized by the appellate court:
Deceased Felix Odong was the registered owner of Lot No. 7777, Ts- 222 located in Molave,
Zamboanga del Sur. Said lot was covered by Original Certificate of Title No. 0-2,768 pursuant to
Decree No. N-64 and issued on March 9, 1966. However, Felix Odong and his heirs never
occupied nor took possession of the lot.
On June 16, 1987, plaintiff-appellants bought said real property from the heirs of Felix Odong
for P8,000.00. Consequently, OCT No. 0-2,768 was cancelled and in its stead, Transfer
Certificate of Title No. T-22,048 was issued on August 6, 1987 in the name of plaintiffappellants. The latter also did not occupy the said property.
Defendant-appellees, on the other hand, had been in continuous, open, peaceful and adverse
possession of the same parcel of land since 1956 up to the present. They were the awardees in the
cadastral proceedings of Lot No. 7778 of the Molave Townsite, Ts-222. During the said cadastral
proceedings, defendant-appellees claimed Lot No. 7778 on the belief that the area they were
actually occupying was Lot No. 7778. As it turned out, however, when the Municipality of
Molave relocated the townsite lots in the area in 1992 as a big portion of Lot No. 7778 was used
by the government as a public road and as there were many discrepancies in the areas occupied,
it was then discovered that defendant-appellees were actually occupying Lot No. 7777.

On June 23, 1992, plaintiff-appellants filed a Complaint docketed as Civil Case No. 92-20-127
for Recovery of Property against defendant-appellees.
On July 19, 1996, the trial court rendered its decision, the dispositive portion of which reads,
thus:
WHEREFORE, judgment is hereby rendered in favor of the defendants and against the plaintiff
1. Holding that the rights of the plaintiffs to recover the land registered in their names,
have been effectively barred by laches; and
2. Ordering the dismissal of the above-entitled case.
No pronouncement as to cost.
SO ORDERED.
Aggrieved, plaintiff-appellants filed an appeal before the Court of Appeals assailing the abovedecision. Said appeal was docketed as CA-G.R. CV No. 55207.
On December 23, 1998, the Court of Appeals, through the then Second Division, rendered a
Decision reversing the assailed decision and decreed as follows:
WHEREFORE, the judgment herein appealed from is hereby REVERSED, and judgment is
hereby rendered declaring the plaintiffs-appellants to be entitled to the possession of Lot No.
7777 of the Molave Townsite, subject to the rights of the defendants-appellees under Article (sic)
448, 546, 547 and 548 of the New Civil Code.
The records of this case are hereby ordered remanded to the court of origin for further
proceedings to determine the rights of the defendants-appellees under the aforesaid article (sic)
of the New Civil Code, and to render judgment thereon in accordance with the evidence and this
decision.
No pronouncement as to costs.
SO ORDERED.
Defendant-appellees thereafter filed a petition for review on certiorari under Rule 45 of the Rules
of Court before the Supreme Court docketed as G.R. No. 139601. On October 18, 1999, the
Supreme Court issued a Resolution denying the petition for late filing and lack of appropriate
service.
Subsequently, or on February 15, 2000, the Supreme Court Resolution had become final and
executory.

Consequently, the case was remanded to the court a quo and the latter commissioned the
Municipal Assessor of Molave, Zamboanga del Sur to determine the value of the improvements
introduced by the defendant-appellees.
The Commissioners Report determined that at the time of ocular inspection, there were three (3)
residential buildings constructed on the property in litigation. During the ocular inspection,
plaintiff-appellants son, Gil Basay, defendant-appellee Virginia Cabang, and one Bernardo
Mendez, an occupant of the lot, were present. In the report, the following appraised value of the
improvements were determined, thus:
lawphil.net
Owner

Lot No.

Area (sq.m.)

Improvement

Appraised Value

Virginia Cabang

7777

32.55

Building

P21,580.65

Jovencio Capuno

7777

15.75

Building

18,663.75

Amelito Mata

7777

14.00

Building

5,658.10

Toilet

1,500.00

Plants & Trees

2,164.00

TOTAL

P49,566.50

Thereafter, upon verbal request of defendant-appellees, the court a quo in its Order declared that
the tie point of the survey should be the BLLM (Bureau of Lands Location Monument) and
authorized the official surveyor of the Bureau of Lands to conduct the survey of the litigated
property.
Pursuant to the above Order, the Community Environment and Natural Resources Office
(CENRO) of the Department of Environment and Natural Resources (DENR)-Region XI
designated Geodetic Engineer Diosdado L. de Guzman to [act] as the official surveyor. On
March 2002, Engr. De Guzman submitted his survey report which stated, inter alia:
1. That on September 18, 2001, the undersigned had conducted verification survey of Lot
7777, Ts-222 and the adjacent lots for reference purposes-with both parties present on the
survey;
2. That the survey was started from BLLM #34, as directed by the Order, taking sideshots
of lot corners, existing concrete fence, road and going back to BLLM #34, a point of
reference;
3. Considering that there was only one BLLM existing on the ground, the undersigned
conducted astronomical observation on December 27, 2001 in order to check the carried
Azimuth of the traverse;

4. That per result of the survey conducted, it was found out and ascertained that the area
occupied by Mrs. Virginia Cabang is a portion of Lot 7777, with lot assignment to be
known as Lot 7777-A with an area of 303 square meters and portion of Lot 7778 with lot
assignment to be known as Lot 7778-A with an area of 76 square meters. On the same lot,
portion of which is also occupied by Mr. Bernardo Mendez with lot assignment to be
known as Lot 7777-B with an area of 236 square meters and Lot 7778-B with an area of
243 square meters as shown on the attached sketch for ready reference;
5. That there were three (3) houses made of light material erected inside Lot No. 7777-A,
which is owned by Mrs. Virginia Cabang and also a concrete house erected both on
portion of Lot No. 7777-B and Lot No. 7778-B, which is owned by Mr. Bernardo
Mendez. x x x;
6. That the existing road had been traversing on a portion of Lot 7778 to be know (sic) as
Lot 7778-CA-G.R. SP No. with an area of 116 square meters as shown on attached sketch
plan.
During the hearing on May 10, 2002, plaintiff-appellants offer to pay P21,000.00 for the
improvement of the lot in question was rejected by defendant-appellees. The court a quo
disclosed its difficulty in resolving whether or not the houses may be subject of an order of
execution it being a family home.
On June 18, 2002, plaintiff-appellants filed their Manifestation and Motion for Execution
alleging therein that defendant-appellees refused to accept payment of the improvements as
determined by the court appointed Commissioner, thus, they should now be ordered to remove
said improvements at their expense or if they refused, an Order of Demolition be issued.
On September 6, 2002, the court a quo issued the herein assailed Order denying the motion for
execution.4
Respondents thereafter elevated their cause to the appellate court which reversed the trial court in
its May 31, 2007 Decision in CA-G.R. CV No. 76755. Petitioners Motion for Reconsideration
was denied by the Court of Appeals in its Resolution5 dated September 21, 2007.
Hence, this petition.
Petitioners insist that the property subject of the controversy is a duly constituted family home
which is not subject to execution, thus, they argue that the appellate tribunal erred in reversing
the judgment of the trial court.
The petition lacks merit.
It bears stressing that the purpose for which the records of the case were remanded to the court of
origin was for the enforcement of the appellate courts final and executory judgment6 in CA-G.R.
CV No. 55207 which, among others, declared herein respondents entitled to the possession of
Lot No. 7777 of the Molave Townsite subject to the provisions of Articles 448,7 546,8 5479 an

54810 of the Civil Code. Indeed, the decision explicitly decreed that the remand of the records of
the case was for the court of origin "[t]o determine the rights of the defendants-appellees under
the aforesaid article[s] of the New Civil Code, and to render judgment thereon in accordance
with the evidence and this decision."
A final and executory judgment may no longer be modified in any respect, even if the
modification is meant to correct erroneous conclusions of fact or law and whether it will be made
by the court that rendered it or by the highest court in the land.11 The only exceptions to this rule
are the correction of (1) clerical errors; (2) the so-called nunc pro tunc entries which cause no
prejudice to any party, and (3) void judgments.12
Well-settled is the rule that there can be no execution until and unless the judgment has become
final and executory, i.e. the period of appeal has lapsed without an appeal having been taken, or,
having been taken, the appeal has been resolved and the records of the case have been returned to
the court of origin, in which event, execution shall issue as a matter of right.13 In short, once a
judgment becomes final, the winning party is entitled to a writ of execution and the issuance
thereof becomes a courts ministerial duty.14
Furthermore, as a matter of settled legal principle, a writ of execution must adhere to every
essential particulars of the judgment sought to be executed.15 An order of execution may not vary
or go beyond the terns of the judgment it seeks to enforce.16 A writ of execution must conform to
the judgment and if it is different from, goes beyond or varies the tenor of the judgment which
gives it life, it is a nullity.17 Otherwise stated, when the order of execution and the corresponding
writ issued pursuant thereto is not in harmony with and exceeds the judgment which gives it life,
they have pro tanto no validity18 to maintain otherwise would be to ignore the constitutional
provision against depriving a person of his property without due process of law.19
As aptly pointed out by the appellate court, from the inception of Civil Case No. 99-20-127, it
was already of judicial notice that the improvements introduced by petitioners on the litigated
property are residential houses not family homes. Belatedly interposing such an extraneous issue
at such a late stage of the proceeding is tantamount to interfering with and varying the terms of
the final and executory judgment and a violation of respondents right to due process because
As a general rule, points of law, theories and issues not brought to the attention of the trial court
cannot be raised for the first time on appeal. For a contrary rule would be unfair to the adverse
party who would have no opportunity to present further evidence material to the new theory,
which it could have done had it been aware of if at the time of the hearing before the trial
court.20lawphil.net
The refusal, therefore, of the trial court to enforce the execution on the ground that the
improvements introduced on the litigated property are family homes goes beyond the pale of
what it had been expressly tasked to do, i.e. its ministerial duty of executing the judgment in
accordance with its essential particulars. The foregoing factual, legal and jurisprudential scenario
reduces the raising of the issue of whether or not the improvements introduced by petitioners are
family homes into a mere afterthought.

Even squarely addressing the issue of whether or not the improvements introduced by petitioners
on the subject land are family homes will not extricate them from their predicament.
As defined, "[T]he family home is a sacred symbol of family love and is the repository of
cherished memories that last during ones lifetime.21 It is the dwelling house where the husband
and wife, or an unmarried head of a family reside, including the land on which it is situated.22 It
is constituted jointly by the husband and the wife or by an unmarried head of a family."23 Article
153 of the Family Code provides that
The family home is deemed constituted from the time it is occupied as a family residence. From
the time of its constitution and so long as any of its beneficiaries actually resides therein, the
family home continues to be such and is exempt from execution, forced sale or attachment
except as hereinafter provided and to the extent of the value allowed by law.
The actual value of the family home shall not exceed, at the time of its constitution, the amount
of P300,000.00 in urban areas and P200,000.00 in rural areas.24 Under the afore-quoted
provision, a family home is deemed constituted on a house and a lot from the time it is occupied
as a family residence. There is no need to constitute the same judicially or extra-judicially.25
There can be no question that a family home is generally exempt from execution,26 provided it
was duly constituted as such. It is likewise a given that the family home must be constituted on
property owned by the persons constituting it. Indeed as pointed out in Kelley, Jr. v. Planters
Products, Inc.27 "[T]he family home must be part of the properties of the absolute community or
the conjugal partnership, or of the exclusive properties of either spouse with the latters consent,
or on the property of the unmarried head of the family."28 In other words:
The family home must be established on the properties of (a) the absolute community, or (b) the
conjugal partnership, or (c) the exclusive property of either spouse with the consent of the other.
It cannot be established on property held in co-ownership with third persons. However, it can be
established partly on community property, or conjugal property and partly on the exclusive
property of either spouse with the consent of the latter.1avvphi1
If constituted by an unmarried head of a family, where there is no communal or conjugal
property existing, it can be constituted only on his or her own property.29 (Emphasis and italics
supplied)
Therein lies the fatal flaw in the postulate of petitioners. For all their arguments to the contrary,
the stark and immutable fact is that the property on which their alleged family home stands is
owned by respondents and the question of ownership had been long laid to rest with the finality
of the appellate courts judgment in CA-G.R. CV No. 55207. Thus, petitioners continued stay on
the subject land is only by mere tolerance of respondents.
All told, it is too late in the day for petitioners to raise this issue. Without doubt, the instant case
where the family home issue has been vigorously pursued by petitioners is but a clear-cut ploy
meant to forestall the enforcement of an otherwise final and executory decision. The execution of

a final judgment is a matter of right on the part of the prevailing party whose implementation is
mandatory and ministerial on the court or tribunal issuing the judgment.30
The most important phase of any proceeding is the execution of judgment.31 Once a judgment
becomes final, the prevailing party should not, through some clever maneuvers devised by an
unsporting loser, be deprived of the fruits of the verdict.32 An unjustified delay in the
enforcement of a judgment sets at naught the role of courts in disposing of justiciable
controversies with finality.33 Furthermore, a judgment if not executed would just be an empty
victory for the prevailing party because execution is the fruit and end of the suit and very aptly
called the life of the law.34
The issue is moreover factual and, to repeat that trite refrain, the Supreme Court is not a trier of
facts. It is not the function of the Court to review, examine and evaluate or weigh the probative
value of the evidence presented. A question of fact would arise in such event. Questions of fact
cannot be raised in an appeal via certiorari before the Supreme Court and are not proper for its
consideration.35 The rationale behind this doctrine is that a review of the findings of fact of the
appellate tribunal is not a function this Court normally undertakes. The Court will not weigh the
evidence all over again unless there is a showing that the findings of the lower court are totally
devoid of support or are clearly erroneous so as to constitute serious abuse of discretion.36
Although there are recognized exceptions37 to this rule, none exists in this case to justify a
departure therefrom.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated May 31,
2007 in CA-G.R. CV No. 76755 declaring respondents entitled to the writ of execution and
ordering petitioners to vacate the subject property, as well as the Resolution dated September 21,
2007 denying the motion for reconsideration, are AFFIRMED. Costs against petitioners.
SO ORDERED.