Civpro Case#5 Kho Vs CA

G.R. No.
83498 October 22, 1991 (denying respondent bank's motion for reconsideration) were all
SPS. MIGUEL S. KHO and JUANITA KHO, petitioners, vs. COURT reversed by respondent Court in its decision dated February 17,
OF APPEALS and BANCO FILIPINO, respondents. 1988.
Facts: Petitioners then filed a motion for reconsideration on February

29, 1988 which was denied thru a Court of Appeals resolution.
On January 31, 1978, the spouses Kho (private respondents
herein) constituted in favor of herein petitioner Banco Filipino a
real estate mortgage over a parcel of land registered in the name Issue:
of plaintiff Miguel Kho to guarantee a loan granted them by
petitioner bank. The real estate mortgage underwent Whether or not the purchaser at a foreclosure sale could validly
amendments,until it was made to secure private respondents' obtain possession of the forclosed property prior to the expiration
obligation with the bank in the total amount of TWO MILLION of the redemption period.
EIGHT HUNDRED SIXTY NINE THOUSAND PESOS (P2,869,000)
Philippine Currency, payable on or before September 29, 1995.
Ruling:
After managing to pay the sum of P688,060.00, the Kho spouses
defaulted in the payment of some amortizations. Hence, on May Yes, the purchaser can obtain possession by writ of possession
13, 1982, Banco Filipino extrajudicially foreclosed the mortgage. even prior to the expiration of the redemprion period.
As the sole and highest bidder in the auction sale, the petitioner
bank purchased the mortgaged property for the sum of The law and jurisprudence are clear that both during and after the
P4,153,865.47 covering the plaintiff's obligations, interests, period of redemption, the purchaser at the foreclosure sale is
penalties and attorney's fees as agreed in the mortgage contract. entitled as of right to a writ of possession, regardless of whether
The certificate of sale was then duly registered on June 17, 1982. or not there is a pending suit for annulment of the mortgage or
the foreclosure itself (without prejudice of course to the eventual
Counting one year from June 17, 1982, the petitioners had until outcome of said case). Hence, an injunction to prohibit the
June 17, 1983, within which to redeem the property. In the issuance of the writ of possession is entirely out of place (See Act
meantime, the foreclosed property was leased out to third parties 3135)
and the rentals (fruits thereof) were remitted monthly by
petitioners to respondent bank. Then just about ten (10) days WHEREFORE, the instant petition is DENIED for lack of merit.
before the end of the redemption period, on June 7, 1983 to be
exact, petitioners filed with the Regional Trial Court of Cebu
(raffled off to Branch IX) a complaint for: "Annulment of Specific
Performance with Preliminary Injunction, etc." against Banco
Filipino, which action was actually for the annulment of the
extrajudicial foreclosure of mortgage. The verified complaint of
petitioners specifically prayed for:
. . . the Honorable Court before judgment and after heaving to

issue a writ of preliminary injunction restraining and enjoining the
defendants jointly and severally from obtaining a writ of
possession or a final deed of conveyance over plaintiffs' land and
restrain the defendants from registering the same; as well as
restraining and enjoining the defendants from collecting any
rentals of the properties of the plaintiffs. Judge Candido C.
Aguinaldo of Branch IX, Regional Trial Court, Cebu, granted the
prayer of petitioners to which respondent bank strongly objected
and in its Urgent Motion to Lift Injunction prayed
In the meantime, present counsel of record for respondent bank

entered his appearance. Judge Aguinaldo claimed some
relationship with him. Hence, the reraffle of the case to another
sala, Branch XIV presided over by Judge Juan Y. Reyes. the
petitioners finally submitted their Memorandum in support of
their opposition to the respondent bank's aforestated Motion to
Lift Injunction. On April 30, 1985, respondent bank's motion was
denied and a motion for reconsideration was thereafter
immediately filed. While the motion for reconsideration was
pending, Judge Reyes retired and again there was a reraffle of the
case which resulted in its being assigned to Judge Meinrado P.
Paredes, of RTC XIII who denied on April 29, 1987, respondent
bank's aforestated motion for reconsideration.
Finally the three (3) above mentioned orders of November 4,

1983 (granting writ of injunction); April 30, 1985 (denying
respondent bank's motion to lift injunction), and April 29, 1987

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G.R. No.

Facts: Petitioners then filed a motion for reconsideration on February

. . . the Honorable Court before judgment and after heaving to

In the meantime, present counsel of record for respondent bank

Finally the three (3) above mentioned orders of November 4,

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