THIRD DIVISION

[G.R. No. 89125. July 2, 1991.]

BANK OF THE PHILIPPINE ISLANDS, petitioner, vs. FAR EAST
MOLASSES CORPORATION, respondent.

Padilla Law Office for petitioner.

Quasha, Asperilla, Ancheta, Pea & Nolasco for respondent.
SYLLABUS
1.
REMEDIAL LAW; MOTIONS; ABSENCE OF NOTICE OF HEARING, FATAL;
REASONS FOR THE RULE. The unrippled doctrine in this jurisdiction is that a
motion that does not contain a notice of hearing is but a mere scrap of paper; it
presents no question which merits the attention and consideration of the court. It is
not even a motion for it does not comply with the rules and hence, the clerk has no
right to receive it. The requirement of notice under Sections 4 and 5, Rule 15 of the
Rules of Court on Motions, reading as follows: "SEC. 4. Notice. Notice of a motion
shall be served by the applicant to all parties concerned at least three (3) days
before the hearing thereof, together with a copy of the motion, and of any adavits
and other papers accompanying it. The court, however, for good cause, may hear a
motion on shorter notice, specially on matters which the court may dispose of on its
own motion. SEC. 5. Contents of notice. The notice shall be directed to the parties
concerned, and shall state the time and place for the hearing of the motion." in
relation to Section 2 of Rule 37 of the Rules of Court which reads: SEC. 2. Contents
of motion for new trial and notice thereof. The motion shall be made in writing
stating the grounds therefore, a written notice of which shall be served by the
movant on the adverse party" is mandatory. Accordingly, the absence of a notice of
hearing is fatal and, in cases of motions to reconsider a decision, the running of the
period to appeal is not tolled by their ling or pendency. In Sembrano v. Ramirez, et
al., (166 SCRA 30) We emphasized anew the above principle: "The Court has
invariably held that a motion without notice of hearing is a mere scrap of paper. It
does not toll the running of the period to appeal. This requirement of notice of
hearing equally applies to a motion for reconsideration. Without such notice, the
motion is pro forma. And a pro forma motion for reconsideration does not suspend
the running of the period to appeal.
2.
ID.; ID.; ID.; NOTICE SHOULD BE DIRECTED TO PARTIES CONCERNED AND
NOT TO COUNSEL. There is no showing that petitioner was furnished with a copy
thereof; on the contrary, petitioner denied having received one. That none at all
was furnished to petitioner is undisputably conrmed by the failure of the adavit
of the messenger of private respondent's counsel to state the contrary. Personal
service of a copy could have been easily done since the oce of counsel for
petitioner is located at Juan Luna St., Manila, while that of counsel for private

respondent is located at Makati, Metro Manila. The so-called notice incorporated in

the Manifestation and Motion is not the notice required by law. It is a notice of the
Clerk of Court and not to counsel for the petitioner. Section 5 of Rule 15 of the
Rules of Court expressly and unequivocally requires that the notice "shall be
directed to the parties concerned." It did not then cure the fatal defect of the motion
for reconsideration.
3.
ID.; ID.; ID.; ID.; SERVICE BY ORDINARY MAIL; WHEN ALLOWED; MOTION
FILED BEYOND PERIOD OF APPEAL DID NOT CURE ITS DEFECT. Even if We
disregard for the moment the absence of proof of service thereof to petitioner, still
no relief is forth-coming to private respondent. The copy of the manifestation and
motion for the trial court was sent by ordinary mail. No credible justication has
been oered by private respondent as to why it was not sent by registered mail.
Section 5 of Rule 13 of the Rules of Court on service by registered or ordinary mail
requires service by registered mail where registry service exists. Otherwise stated,
service by ordinary mail is allowed only in instances where no registry service
exists. Private respondent fails to indicate that no registry service was available at
the Post Oce where it was mailed. Considering nevertheless, that the oce of
counsel for private respondent is in Makati, Metro Manila, We cannot be persuaded
to admit that there is no Post Oce thereat which does not oer registry service.
Nonetheless, even conceding some lapses in the degree of diligence required by
counsel, and admitting that it did send by ordinary mail the manifestation and
motion in the afternoon of the day it led the defective motion for reconsideration,
still the former did not cure the defect. For, to all legal intents and purposes, the
manifestation and motion must be deemed to have been led on the day that it
was received by the court, i.e., on 7 August 1987. Having been led clearly beyond
the period to appeal, it did not operate to cure the defect of the motion for
reconsideration. It cannot be given a retroactive effect.
4.
ID.; APPEAL; CONCLUSIONS OF THE COURT OF APPEALS NOT SUPPORTED BY
FACTS; RECKONING DATE OF PERIOD TO APPEAL. There is another aspect of the
challenged decision which must be squarely addressed because the conclusions
made are not supported by facts. Moreover, it makes an erroneous pontication as
to the date the period to appeal from a decision commences to run. In the rst
place, it is not true that both parties received a copy of the decision of the trial court
on 22 July 1987. In its own ndings of facts, the Court of Appeals categorically
stated that private respondents received a copy of the decision on 7 July 1987 and
that 22 July 1987 was the last day to le a notice of appeal, had they wished to
appeal. Moreover, the commencement of the period to appeal should not be
reckoned, as seems to be suggested by the Court of Appeals, from the latest date
any of the parties received a copy of the decision, but from the respective dates each
of the parties received a copy of the decision. Therefore, each party has a dierent
period within which to appeal, unless, of course, all of them received their copies on
the same date and none filed a motion for reconsideration.
5.
ID.; ID.; "LAST DAY TO APPEAL" AND "PERFECTION OF THE APPEAL,"
DISTINGUISHED. Section 23 of the Interim Rules of Court and the decisions
referred to, contrary again to the perception of the respondent Court Of Appeals, do

not interpret the phrase "last day to appeal by any party," but rather refer to the
perfection of the appeal. There is a whale of a dierence between last day to appeal
and perfection of the appeal. The last day to appeal is the fteenth day from receipt
by a party of a copy of the decision. However, that appeal is not considered
perfected until the expiration of the period to appeal by the other party in the case.
The distinction assumes importance only in cases involving execution of judgment
pending appeal.
DECISION
DAVIDE, JR., J :
p

This is an appeal by certiorari to review the decision 1 of the Court of Appeals of 24

February 1989 in C.A.-G.R. SP No. 12722 2 granting respondent's petition for
certiorari, setting aside the trial court's order of 24 August 1987 in Civil Case No.
23282 which granted the motion for execution of judgment, and giving due course
to its appeal, as well as its Resolution dated 11 July 1989, denying petitioner's
motion for reconsideration.
The antecedent facts are not disputed.
On 15 April 1976, petitioner led with the Court of First Instance (now Regional
Trial Court) of Rizal a complaint 3 for recovery of a sum of money against herein
respondent and L & A Company, Inc., Estate of Trinidad Lazatin and the Intestate
Estate of Eduardo Ayson, praying therein for judgment ordering said defendants,
jointly and severally, to pay herein petitioner the aggregate amount of P575,043.75
plus interest at the rate of 14% per annum and a service fee of 2% per annum from
and after March 16, 1976 until the amount is fully paid. The complaint was
docketed as Civil Case No. 23282.
After due trial, the lower court rendered on 26 June 1987 its decision thereon,
dispositive portion of which reads:
"WHEREFORE, this Court in the furtherance of justice and equity, hereby
renders judgment in favor of plainti, Bank of Philippines (sic) Islands
(petitioners herein) and against the defendants L.A. & Co. Inc., and Far East
Molasses Corporation, BY WAY OF THE MAIN COMPLAINT, to wit:
1.
Ordering the defendants LA. & Co. Inc., and Far East
Molasses Corporation jointly and severally to pay the plainti, Bank of
the Philippine Islands, the sum of P575,043.75 plus interest at the rate
of 14% per annum and a service fee of 2% per annum from and after
March 16, 1976 until the amount is fully paid and dismissing the
defendants (sic) counterclaims;
2.
Ordering the defendants L.A. & Co. Inc., and Far East
Molasses Corporation to pay jointly and severally, the plainti, Bank of

the

the Philippine Islands, the sum equivalent of 10% of the total amount
due as an attorney's fee (sic), dismissing FEMOLA cross claim against
defendant L.A. & Corp. and
3.
Ordering the defendants jointly and severally, to pay the
costs of the suit.
AND
BY WAY OF THIRD PARTY-COMPLAINT
THIS Court hereby renders judgment in favor of the third party plainti LA &
Co. Inc., against the third party defendants, to wit:
1.
Ordering the third-party defendant Pampanga Sugar Mills
Inc. (PASUMIL) together with other third-party defendants Buena
Industrial Development Corporation (BIDC), Valeriano C. Bueno,
National Sugar Development Corporation (NASUDECO) and Philippine
National Bank (PNB), by way of reimbursement, joint (sic) and
severally the defendant and third party-plainti LA & Co. Inc., for any
amount covering all claims, damages and attorneys (sic) fees and
costs awarded in favor of the plainti, Bank of Philippine (sic) Islands,
by this Court, against the third-party plainti and defendant LA & Co.
Inc., on plaintiffs complaint.
SO ORDERED."

Private respondent (then defendant) received a copy of the Decision on 7 July 1987.
It had, therefore, until 22 July 1987 within which to appeal therefrom. Instead of
ling a notice of appeal within the period, it led, in the morning of 22 July 1987, a
motion to reconsider the decision. The motion, however, did not contain any notice
of hearing. 5

It appears nevertheless, that on 22 July 1987, probably to cure the defect of lack of
notice of hearing, counsel for respondent allegedly mailed by ordinary mail a socalled Manifestation and Motion incorporating therein the omitted notice of hearing,
6 and claiming that said notice "was inadvertently omitted from the said Motion for
Reconsideration." The incorporated notice reads:
"The Clerk of Court
RTC-Branch 69
Pasig, Metro Manila
G R E E T I N G S:
Please take notice that on 6 August 1987 at 8:30 A.M., the undersigned will
submit the foregoing motion for the consideration and resolution of the
Honorable Court." 7 (Emphasis supplied).

The "foregoing motion" refers to the motion for reconsideration.

This so-called Manifestation and Motion, as admitted by respondent, 8 appears to

have been received by the trial court only on 7 August 1987. Petitioner claims that
it never received a copy of said pleading 9 and that there is even doubt as to when it
was actually mailed since the messenger of private respondent's lawyer, in his
adavit, Annex "AA" of Petition, could not even state the name of the Post Oce
where he supposedly mailed it.
On 27 July 1987, the trial court denied respondent's motion for reconsideration on
the ground that it "nds no sucient basis to justify departure from its original
decision." 10
On 3 August 1987, petitioner led with the trial court a motion for execution of
judgment on the ground that it had already become nal since the motion for
reconsideration did not stop the running of the period to appeal, considering that it
did not contain the notice required by Section 5 of Rule 16 of the Rules of Court. 11
Also on 3 August 1987, upon receipt of the Order of 27 July 1987, respondent led a
Notice of Appeal. 12
On 10 August 1987, the trial court issued its order denying the motion for
execution, 13 ruling that:
"The question boils down to whether the Motion for Reconsideration
interrupted the running of the period of appeal. Considering the argument of
the defendant, thus Court believes and so holds that the defect on the
Motion for Reconsideration was cured on the same day by timely
incorporation of the omitted notice in substantial compliance with Section 5,
Rule 15 of the Rules of Court, and consequently the Motion for Execution is
hereby denied (Annex I)."

On 13 August 1987, petitioner led a motion for the reconsideration

order.

14

of the above

On 24 August 1987, the trial court issued an order 15 granting the motion for
reconsideration and ordering the execution of the decision, the pertinent portion of
which reads:
"Acting upon the Motion for Reconsideration led by the plainti, thru
counsel or taking into account the more exhaustive arguments of parties or
counsel, based on the decisions of the Supreme Court in Lucila B. Vda. de
Azarias vs. Hon. Mando Maddela, etc., 38 SCRA 35; PNB vs. Ponasco, 7
SCRA 409; Manakil vs. Revilla, 42 Phil. 81; In re Almacen, 3 SCRA 562; Inesin
vs. Canonoy, 107 Phil. 217; Manansala vs. Heras, 103 Phil. 575; Sun Un Giok
vs. Malusa, 101 Phil. 727; Cledera vs. Sarmiento, 39 SCRA 552, and
considering further doubts expressed by counsel on some data relative to
the records of the case, the order of this Court under date of August 10,
1987 is hereby reconsidered and set aside and that plainti's motion for
execution is hereby granted.
SO ORDERED."

Unable to accept the above order, respondent herein led with the Court of Appeals
a Special Civil Action for Certiorari with Preliminary Injunction and Temporary
Restraining Order seeking the nullication of the order of 24 August 1987. Said
petition was docketed as C.A.-G.R. SP No. 12722.
In its Decision of 24 February 1989,
disquisitions:

16

the Court of Appeals made the following

"On the question of jurisdiction, August 3, 1987 may or may not be the last
or 15th day of the period of appealing in this case. The last day of appealing
(sic) depends on the day the parties received their copies of the decision,
the last to receive its copy being the last day of appealing (sic), irrespective
of whether the last party to receive its copy of the decision is the appellant.
However, if all the parties hereto received the copy of the decision on the
same day, July 22, 1987, as did petitioner, the last day of (sic) perfecting an
appeal therefrom by anyone of the parties is on August 3, 1987. (Belgado
vs. Intermediate Appellate Court, 147 SCRA 258; Yabut vs. Intermediate
Appellate Court, 142 SCRA 124; Montelibano vs. Bacolod-Murcia, 136 SCRA
295). These decisions interpreted the phrase 'last day to appeal by any
party' contained in Section 23, Interim Rules and Guidelines.
Assuming therefore, that the period of appeal against the decision of
respondent Court ended on August 3, 1987, the notice of appeal of
petitioner as well as the motion for execution of private respondent were
seasonably led on time and consequently respondent court had jurisdiction
to resolve them.
Did the respondent Court act correctly in issuing the challenged order of
August 24, 1987 which granted execution by reconsidering its prior order of
August 10, 1987? It did not. It acted with grave abuse of discretion. Most of
the cases cited in its order of August 24, 1987 are not applicable to the case
at bar. The others support petitioner's position.
The case of Manakil vs. Revilla, 42 Phil. 81, August 29, 1921, involved a
motion for reconsideration without the time or place of hearing, which was
attempted to be cured by setting the date of the hearing after the decision
had become nal and executory. In this case, the defective motion for
reconsideration was cured on the same day it was led and before the
decision had become nal and executory. The case of Azarias vs. Maddela,
38 SCRA 35, May 19, 1971, involved a motion for Reconsideration which
was merely, respectfully submitted for the consideration of the respondent
court. In the case of In Re Almacen cited in the Azarias case, the motion for
reconsideration did not contain the time or date of its hearing. In Cledera vs.
Sarmiento, 39 SCRA 552, June 10, 1971, the motion for reconsideration was
submitted 'for resolution of the Honorable Court upon receipt thereof'. In
Bautista Angelo vs. Alfaro, cited in the Azarias case, the motion for
reconsideration was led without specifying the time or place of hearing. In
Manila Surety & Fidelity Co., vs. Batu Construction, 14 SCRA 435, 1965, also
cited in the Azarias case, the motion for reconsideration did not have any
time or date of hearing.

In Inesin vs. Canonoy, 107 Phil. 213, Feb. 29, 1960, the motion for
reconsideration did not contain the time and date of hearing because
counsel of movant did not know when the Presiding Judge of Pagadian,
Zamboanga would hear cases in that town, since the Judge goes to
Pagadian only once a year, and so the court in said case held that the
motion for reconsideration suspended the period of appeal.
In Sun Un Giok vs. Teodoro, 101 Phil. 727, May 31, 1957, the motion to
dismiss did not hear the time and date of hearing. However, the court itself
set the motion for hearing for the reasons (sic) that the adverse party was
properly notied of the existence of the motion to dismiss. The Supreme
Court ruled therein:
'What the law prohibits is not the absence of previous notice,
but the absolute absence thereof and lack of opportunity to be heard.'
(Citing Borja vs. Tan, 93 Phil. 167, and Duran vs. Penolio, 93 Phil. 782).
In the case at bar, the deciency or omission was corrected on July 22,
1987, before the judgment became nal and fourteen (14) days before the
hearing set for August 6, 1987. Again, private respondents were duly heard
on the matter of inquiry. It was the subject of the order of August 10, 1987,
with private respondent Bank of the Philippine Islands ling a motion for
reconsideration of the said order of August 10, 1987. The ling of a motion
for reconsideration cures the lack of procedural due process (de Leon vs.
COMELEC, 129 SCRA 117; Ramerco Garments vs. Minister of Labor and
Employment, 135 SCRA 167; Sumadchat vs. Court of Appeals, III SCRA
469).
Courts are fully cognizant of man's failings. They punish those who act
negligently, or out of skill, or in utter bad faith. In the spirit of fair play, they
help those who immediately rise to the occasion, admit their mistakes, and
try to cure them quickly. Courts abhor technicalities, they act to give every
litigant the opportunity to be heard either in the trial stage or on appeal, for
truth is best forged in the anvil of due process." 17

and on the basis thereof, concluded and held:

"In OUR own view, WE believe that the respondent Judge certainly
committed grave abuse of discretion amounting to excess of jurisdiction in
issuing the challenged order dated August 24,1987 in Civil Case No. 23282.
WHEREFORE, the petition for certiorari is GRANTED. The order of August
24, 1987 of the respondent Court is hereby set aside and the petitioner's
appeal is hereby allowed and given due course. No costs."

On 20 March 1989, petitioner led a motion for the reconsideration

decision, which was denied in the resolution of 11 July 1989. 19

18

of the above

Hence, this petition, which was led on 28 July 1989. Petitioner assigns the
following errors as having been committed by the Court of Appeals:
cdphil

1.
The former Sixth Division of the Court of Appeals erroneously
concluded that the Notice of Appeal of respondent was seasonably filed.
2.
The former Sixth Division of the Court of Appeals mistakenly
maintained that the court a quo acted with grave abuse of discretion in
issuing its order of August 24, 1987 reconsidering the motion for execution
of judgment of the petitioner.
3.
The former Sixth Division of the Court of Appeals wrongly
miscomprehended the true intent and purpose of the decisions of this
Honorable Court in line with Sections 4, 5 and 6 of the Rules of Court; and
wrongly concluded that said decisions was (sic) contrary to petitioner's
petition. 20

We required respondent to comment on the petition. 21

The Comment was filed on 6 September 1989. 22
In the Resolution of 18 September 1989, We resolved to require the petitioner to
implead the Court of Appeals as party respondent and to le a reply to the
Comment of private respondent.
The Reply was filed on 14 October 1989. 23
Thereafter, We gave due course to the petition and required the parties to submit
their respective memoranda, 24 which the petitioner complied with on 29 November
25 and the private respondent on 12 December 1989. 26
We nd the instant appeal by certiorari to be impressed with merit. The challenged
decision of respondent Court of Appeals is not in accord with the rules and settled
jurisprudence and must perforce be reversed and set aside. Its ndings and
conclusions are not supported by facts and are based on erroneous assumptions.
As shown above, private respondent received a copy of the 26 June 1987 decision of
the trial court in Civil Case No. 23282 on 7 July 1987. It had therefore, until 22 July
1987 within which to appeal, if it wished to, from said decision. Instead of ling a
notice of appeal on or before the latter date, private respondent led in the morning
of 22 July 1987 a Motion for Reconsideration. Unfortunately, the said motion did not
contain a notice of hearing. On 3 August 1987, herein petitioner led a motion for
the execution of judgment alleging therein that the decision had already become
nal and executory since the motion for reconsideration, being merely a worthless
piece of paper for its failure to comply with the requirement of notice, did not stop
the running of the period to appeal from the decision. It appears however, that on 7
August 1987, the trial court received a copy of a so-called Manifestation and Motion
signed by counsel for private respondent wherein there was incorporated a notice
addressed to the Clerk of Court informing the latter that said counsel will submit
the motion [for reconsideration] for the consideration and resolution of the Court on
6 August 1987 at 8:30 A.M. This manifestation and motion was allegedly sent by

ordinary mail in the afternoon of 22 July 1987; however, the adavit 27 of the
messenger who purportedly mailed it deliberately fails to mention the name of the
Post Oce concerned. The reason he gave for the mailing was that it was already
late in the afternoon and he anticipated that the manifestation and motion can no
longer be filed on time.
The unrippled doctrine in this jurisdiction is that a motion that does not contain a
notice of hearing is but a mere scrap of paper; it presents no question which merits
the attention and consideration of the court. It is not even a motion for it does not
comply with the rules and hence, the clerk has no right to receive it. 28
The requirement of notice under Sections 4 and 5, Rule 15 of the Rules of Court on
Motions, reading as follows:
LibLex

"SEC. 4.
Notice. Notice of a motion shall be served by the applicant to
all parties concerned at least three (3) days before the hearing thereof,
together with a copy of the motion, and of any adavits and other papers
accompanying it. The court, however, for good cause, may hear a motion
on shorter notice, specially on matters which the court may dispose of on
its own motion.
SEC. 5.
Contents of notice. The notice shall be directed to the parties
concerned, and shall state the time and place for the hearing of the motion."

in relation to Section 2 of Rule 37 of the Rules of Court which reads:

"SEC. 2.
Contents of motion for new trial and notice thereof. The
motion shall be made in writing stating the grounds therefor, a written notice
of which shall be served by the movant on the adverse party."
xxx xxx xxx

i s mandatory. 29 Accordingly, the absence of a notice of hearing is fatal and, in

cases of motions to reconsider a decision, the running of the period to appeal is
not tolled by their ling or pendency. In Sembrano vs. Ramirez, et al., 30 We
emphasized anew the above principle:
"The Court has invariably held that a motion without notice of hearing is a
mere scrap of paper. 31 It does not toll the running of the period of appeal.
32 This requirement of notice of hearing equally applies to a motion for
reconsideration. 33 Without such notice, the motion is pro forma. And a pro
forma motion for reconsideration does not suspend the running of the
period to appeal. 34

In the light of the foregoing pronouncements of the Court, private respondent's

motion for reconsideration led on 22 July 1987 did not, therefore, suspend or toll
the running of the period to appeal. However, private respondent argues, and
respondent court erroneously concedes, that the failure of notice was cured by the
Manifestation and Motion which it led by ordinary mail In the afternoon of that
date. This pleading is another useless piece of paper. There is no showing that

petitioner was furnished with a copy thereof; on the contrary, petitioner denied
having, received one. That none at all was furnished to petitioner is undisputably
conrmed by the failure of the adavit of the messenger of private respondent's
counsel 35 to state the contrary. Personal service of a copy could have been easily
done since the oce of counsel for petitioner is located at Juan Luna St., Manila,
while that of counsel for private respondent is located at Makati, Metro Manila.
Besides, the so-called notice incorporated in the Manifestation and Motion is not the
notice required by law. As stated above, it is a notice to the Clerk of Court and not to
counsel for the petitioner. Section 6 of Rule 15 of the Rules of Court expressly and
unequivocally requires that the notice "shall be directed to the parties concerned." It
did not then cure the fatal defect of the motion for reconsideration.
In Magno vs. Ortiz, supra, We did not even consider a notice of hearing subsequently
issued by the court as having cured the defect of lack of notice for:
cdphil

". . . in the rst place, the duty to give such notices devolves upon the
movant, not upon the court. In Fulton Insurance Co. vs. Manila Railroad Co.,
et al., supra, it was pointed out categorically that section 2 of Rule 37
repealed the provision of section 146 of the old Code of Civil Procedure and
the rulings founded thereon, to the eect that the notice must be served by
the court on the adverse party. Secondly, even granting that the court a
quo had authority to issue motu proprio the notice of hearing, such notice
nevertheless did not cure the defect of the motion for reconsideration. For
while the motion was led on the thirtieth day from notice of the decision the
notice of hearing was only issued sixteen (16) days thereafter."

In the instant case, there was no subsequent notice of hearing that was issued by
the trial court. If any was issued, it would have been, undisputably, beyond the
period to appeal since it is not denied that the trial court received a copy of the
manifestation only on 7 August 1987, or on the sixteenth (16th) day after the
expiry date (22 July 1987) of the period to appeal. Even if We are to stretch then
the Court's liberality and spread it as thinly as possible by conceding for the sake of
argument that the so-called motion incorporated in the Manifestation and Motion is
substantial compliance with the required notice under Section 5 of Rule 15 and
Section 2 of Rule 37 of the Rules of Court, and even if We disregard for the moment
the absence of proof of service thereof to petitioner, still no relief is forthcoming to
private respondent. The copy of the manifestation and motion for the trial court was
sent by ordinary mail. No credible justication has been oered by private
respondent as to why it was not sent by registered mail. Section 5 of Rule 13 of the
Rules of Court on service by registered or ordinary mail requires service by
registered mail where registry service exists. Otherwise stated, service by ordinary
mail is allowed only in instances where no registry service exists. 36 Private
respondent fails to indicate that no registry service was available at the Post Oce
where it was mailed. Considering nevertheless, that the oce of counsel for private
respondent is in Makati, Metro Manila, We cannot be persuaded to admit that there
is no Post Oce thereat which does not oer registry service. This Court takes
judicial notice of the fact that Makati is a very prosperous and progressive
municipality and is now the business and nancial center of the National Capital

Region. Neither can We expect counsel for private respondent, who belongs to a big
law rm, to be so naive as to choose a Post Oce without such service for the
mailing of a very important pleading. Nonetheless, even conceding some lapses in
the degree of diligence required of counsel, and admitting that it did send by
ordinary mail the manifestation and motion in the afternoon of the day it led the
defective motion for reconsideration, still the former did not cure the defect. For, to
all legal intents and purposes, the manifestation and motion must be deemed to
have been led on the day that it was received by the court, i.e., on 7 August 1987.
Commenting on Section 8 of Rule 13 of the Rules of Court on completeness of
service, Moran says:
". . . If by ordinary mail, since it is not easy to determine the exact date when
the notice is received by the addressee, the service is deemed complete and
effective upon the expiration of ve (5) days after the date of mailing, as
that is the estimated period of time in which a letter sent by registered mail
reaches its destination anywhere in the Philippines, except in few places
requiring more time which cannot be xed before-hand, and as to which the
court must provide, in each case, a special period upon the expiration of
which the service may be deemed complete and eective, and except when
the actual date of receipt is shown to be otherwise. . . . ." 37 (Emphasis
supplied for emphasis).

Having been led clearly beyond the period to appeal, it did not operate to cure the
defect of the motion for reconsideration. It cannot be given a retroactive eect. In
Manila Surety & Fidelity Co., Inc. vs. Batu Construction & Co., et al., supra , We
ruled:
LLphil

"We are not impressed by the argument that the 'supplement' led by
appellant on May 30 should be deemed retroactive as of the date the motion
for reconsideration was led and therefore cured the defect therein. To so
consider it would be to put a premium on negligence and subject the nality
of judgment to the forgetfulness or whims of parties-litigants and their
lawyers. This of course would be intolerable in a well-ordered judicial
system."

Hence, the decision of the trial court became nal on 22 July 1987 and it did not
commit any error when it issued the Order of 24 August 1987 granting the motion
of herein petitioner for the execution of the decision.
Upon the other hand, respondent Court of Appeals chose to be oblivious to the
foregoing rules and unrippled doctrine and to be extravagantly liberal to the private
respondent not only by accepting as true the incredible claim that the Manifestation
and Motion was sent by ordinary mail on 22 July 1987 but also by considering as
valid and sucient the notice incorporated therein. Contrary to the ndings of the
respondent court, the mailing of the Manifestation and Motion was not evidence of
those "who immediately rise to the occasion, admit [their] mistakes, and try to cure
them quickly," but a crude attempt to cover-up a late discovery of neglect or

omission. It is not at all improbable, as petitioner contended, that the "discovery"

was made by private respondent only after petitioner led a motion for execution
on 3 August 1987. Thus, instead of evoking the sympathy of the Court, petitioner's
counsel should be reprimanded for employing a malicious strategy to avoid the
consequences of his fatal mistake.
There is another aspect of the challenged decision which must be squarely
addressed because the conclusions made are not supported by facts. Moreover, it
makes an erroneous pontication as to the date the period to appeal from a decision
commences to run. Said court states:
"On the question of jurisdiction, August 3, 1987 may or may not be the last
or 15th day of the period of appealing in this case The last day of appealing
(sic) depends on the day the parties received their copies of the decision,
the last to receive its copy being the last day of appealing (sic), irrespective
of whether the last party to receive its copy of the decision is the appellant.
However, if all the parties hereto received the copy of the decision on the
same day, July 22, 1987, as did petitioner [private respondent herein], the
last day of perfecting an appeal therefrom by anyone of the parties is on
August 3, 1987. (Belgado vs. Intermediate Appellate Court, 147 SCRA 258;
Yabut vs. Intermediate Appellate Court, 142 SCRA 124; Montelibano vs.
Bacolod-Murcia, 136 SCRA 295) These decisions interpreted the phrase 'last
day to appeal by any party contained in Section 23, Interim Rules and
Guidelines."

In the rst place, it is not true that both parties received a copy of the decision of
the trial court on 22 July 1987. In its own ndings of facts, the Court of Appeals
categorically stated that private respondents received a copy of the decision on 7
July 1987 and that 22 July 1987 was the last day to le a notice of appeal, had they
wished to appeal. Moreover, the commencement of the period to appeal should not
be reckoned, as seems to be suggested by the Court of Appeals, from the latest date
any of the parties received a copy of the decision, but from the respective dates each
of the parties received a copy of the decision. Therefore, each party has a dierent
period within which to appeal, unless, of course, all of them received their copies on
the same date and none led a motion for reconsideration. Section 23 of the
Interim Rules of Court and the decisions referred to, contrary again to the
perception of the respondent Court of Appeals, do not interpret the phrase "last day
to appeal by any party," but rather refer to the perfection of the appeal. There is a
whale of a dierence between last day to appeal and perfection of the appeal. The
last day to appeal is the fteenth day from receipt by a party of a copy of the
decision. However, that appeal is not considered perfected until the expiration of the
period to appeal by the other party in the case. The distinction assumes importance
only in cases involving execution of judgment pending appeal.
LexLib

WHEREFORE, the instant petition is GRANTED and the Decision of the respondent
Court of Appeals of 24 February 1987 in C.A.-G.R. SP No. 12722 is REVERSED and
SET ASIDE. The Order of the Regional Trial Court of Pasig, Rizal (Branch 69) in Civil
Case No. 23282 of 24 August 1987 is hereby REINSTATED.

Costs against private respondent.

SO ORDERED.

Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

Fernan, C.J., took no part.
Footnotes
1.

Per Associate Justice Bonifacio Cacdac, Jr., concurred in by Associate Justices

Floreliana Castro-Bartolome and Ricardo L. Pronove, Jr.

2.

Entitled Far East Molasses Corp. vs. Hon. Jainal L. Rasul, etc., Bank of the
Philippine Islands and L.A. & Co., Inc.

3.

Annex "A" of Petition; Rollo, 25, et seq.

4.

Annex "E" of Petition; Id., 46, et seq.

5.

Annex "G" of Petition; Rollo, 64.

6.

Paragraphs 2 and 3 of respondent's Manifestation/Opposition led before the trial

court (Annex "J" of Petition); Rollo, 68, et seq.

7.

Decision in C.A.-G.R. SP No. 12722, p. 3; Id., 110; Annex "Z" of Petition; Id., 123.

8.

P. 8 of Comment; Id., 135.

9.

Id., 19, 74, and 180.

10.

Annex "H" of Petition; Rollo, 65, et seq.

11.

Annex "F" of Petition; Id., 57, et seq.

12.

Annex "I" of Petition; Id., 66, et seq.

13.

Annex "K" of Petition; Id., 70, et seq.

14.

Annex "L" of Petition; Id., 72, et seq.

15.

Annex "P" of Petition; Rollo, 87.

16.

Annex "W" of Petition; Id., 108, et seq.

17.

Rollo, 112-114.

18.

Annex "X" of Petition; Rollo, 116, et seq.

19.

Annex "Y" of Petition; Id., 122.

20.

Rollo, 8, 15, and 17.

21.

Resolution of 9 August 1989; Id., 127.

22.

Id. 128.

23.

Id., 157.

24.

Resolution of 25 October 1989; Id., 167.

25.

Id., 171.

26.

Id., 198.

27.

Annex "AA" of Petition; Rollo, 125.

28.

Firme, et al. vs Reyes, et al., 92 SCRA 713, citing Manakil, et al. vs. Revilla, et al.,
42 Phil. 81; Roman Catholic Bishop of Lipa vs. Municipality of Umisan, 44 Phil. 866;
Director of Lands vs. Sanz, 45 Phil. 117. See also Filipinas Fabricators & Sales, Inc.
et al. vs. The Hon. Magsino, et al., 157 SCRA 469.

29.

Cledera vs. Sarmiento, 39 SCRA 552; Manila Surety and Fidelity Co., Inc. vs. Batu
Construction and Co., et al, 14 SCRA 435; Fulton Insurance Co. vs. Manila Railroad
Co., 21 SCRA 975; Magno vs. Ortiz, 26 SCRA 692; Calero vs. Yaptinchay, 31 SCRA
562; and Sebastian vs. Cabal, 32 SCRA 453. See also Azajar vs. Court of Appeals,
145 SCRA 333.

30.
31.
32.

166 SCRA 30.

Citing Manakil vs. Revilla, supra, and Roman Catholic Bishop of Lipa vs.
Municipality of Umisan, supra.
Citing Calero vs. Yaptinchay, and Sebastian vs. Cabal, supra.

33.

Citing Firme vs. Reyes, supra, and Republic Planters Bank vs. IAC, 131 SCRA
631.

34.

Citing Cruz vs. J.M. Tuazon & Co., Inc., 76 SCRA 543; Balquiora vs. CFI, 80 SCRA
123; Garcia vs. Echiverri, 132 SCRA 631. See also Phil. Advertising Counselors Inc.
vs. Revilla, 52 SCRA 246 and Ferrer vs. Golez, 25 SCRA 331.

35.

Annex "AA" of Petition.

36.

MORAN, Comments on the Rules of Court, vol. I, Part I, 1979 ed., p. 425.

37.

Op. cit., p. 427.