Thursday, May 10, 2012

Writ of possession; how to contest and appeal issuance of. - G.R. No. 173820

G.R. No. 173820

"x x x.


A special civil action for certiorari could be availed of only if a tribunal, board, or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and if there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law.[28] It has been repeatedly held in a number of cases[29] that the remedy of a party from the trial court’s order granting the issuance of a writ of possession is to file a petition to set aside the sale and cancel the writ of possession, and the aggrieved party may then appeal from the order denying or granting said petition.[30]When a writ of possession had already been issued as in this case,[31] the proper remedy is an appeal and not a petition for certiorari.[32] To be sure, the trial court’s order granting the writ of possession is final.[33] The soundness of the order granting the writ of possession is a matter of judgment, with respect to which the remedy of the party aggrieved is ordinary appeal.[34] As respondent availed of the wrong remedy, the appellate court erred in not dismissing outright the petition for certiorari.
 x x x."