Catu v. Rellosa, AC 5738, February 19, 2008

A.C. No. 5738             February 19, 2008

WILFREDO M. CATU, complainant, 
vs.
ATTY. VICENTE G. RELLOSA, respondent.

R E S O L U T I O N

CORONA, J.:

Complainant Wilfredo M. Catu is a co-owner of a lot¹ and the building erected thereon located at 959 San Andres Street, Malate, Manila. His mother and brother, Regina Catu and Antonio Catu, contested the possession of Elizabeth C. Diaz-Catu² and Antonio Pastor³ of one of the units in the building. The latter ignored demands for them to vacate the premises. Thus, a complaint was initiated against them in the Lupong Tagapamayapa of Barangay 723, Zone 79 of the 5^th District of Manila⁴ where the parties reside.

Respondent, as punong barangay of Barangay 723, summoned the parties to conciliation meetings.⁵ When the parties failed to arrive at an amicable settlement, respondent issued a certification for the filing of the appropriate action in court.

Thereafter, Regina and Antonio filed a complaint for ejectment against Elizabeth and Pastor in the Metropolitan Trial Court of Manila, Branch 11. Respondent entered his appearance as counsel for the defendants in that case. Because of this, complainant filed the instant administrative complaint,⁶ claiming that respondent committed an act of impropriety as a lawyer and as a public officer when he stood as counsel for the defendants despite the fact that he presided over the conciliation proceedings between the litigants as punong barangay.

In his defense, respondent claimed that one of his duties as punong barangay was to hear complaints referred to the barangay's Lupong Tagapamayapa. As such, he heard the complaint of Regina and Antonio against Elizabeth and Pastor. As head of the Lupon, he performed his task with utmost objectivity, without bias or partiality towards any of the parties. The parties, however, were not able to amicably settle their dispute and Regina and Antonio filed the ejectment case. It was then that Elizabeth sought his legal assistance. He acceded to her request. He handled her case for free because she was financially distressed and he wanted to prevent the commission of a patent injustice against her.

The complaint was referred to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. As there was no factual issue to thresh out, the IBP's Commission on Bar Discipline (CBD) required the parties to submit their respective position papers. After evaluating the contentions of the parties, the IBP-CBD found sufficient ground to discipline respondent.⁷

According to the IBP-CBD, respondent admitted that, as punong barangay, he presided over the conciliation proceedings and heard the complaint of Regina and Antonio against Elizabeth and Pastor. Subsequently, however, he represented Elizabeth and Pastor in the ejectment case filed against them by Regina and Antonio. In the course thereof, he prepared and signed pleadings including the answer with counterclaim, pre-trial brief, position paper and notice of appeal. By so doing, respondent violated Rule 6.03 of the Code of Professional Responsibility:

Rule 6.03 - A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he intervened while in said service.

Furthermore, as an elective official, respondent contravened the prohibition under Section 7(b)(2) of RA 6713:⁸

SEC. 7. Prohibited Acts and Transactions. - In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official ands employee and are hereby declared to be unlawful:

xxx       xxx       xxx

(b) Outside employment and other activities related thereto. - Public officials and employees during their incumbency shall not:

xxx       xxx       xxx

(2) Engage in the private practice of profession unless authorized by the Constitution or law, provided that such practice will not conflict or tend to conflict with their official functions; xxx (emphasis supplied)

According to the IBP-CBD, respondent's violation of this prohibition constituted a breach of Canon 1 of the Code of Professional Responsibility:

CANON 1. A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND,PROMOTE RESPECT FOR LAW AND LEGAL PROCESSES. (emphasis supplied)

For these infractions, the IBP-CBD recommended the respondent's suspension from the practice of law for one month with a stern warning that the commission of the same or similar act will be dealt with more severely.⁹ This was adopted and approved by the IBP Board of Governors.¹⁰

We modify the foregoing findings regarding the transgression of respondent as well as the recommendation on the imposable penalty.

Rule 6.03 of the Code of Professional Responsibility Applies Only to Former Government Lawyers

Respondent cannot be found liable for violation of Rule 6.03 of the Code of Professional Responsibility. As worded, that Rule applies only to a lawyer who has left government service and in connection "with any matter in which he intervened while in said service." In PCGG v. Sandiganbayan,¹¹ we ruled that Rule 6.03 prohibits former government lawyers from accepting "engagement or employment in connection with any matter in which [they] had intervened while in said service."

Respondent was an incumbent punong barangay at the time he committed the act complained of. Therefore, he was not covered by that provision.

Section 90 of RA 7160, Not Section 7(b)(2) of RA 6713, Governs The Practice of Profession of Elective Local Government Officials

Section 7(b)(2) of RA 6713 prohibits public officials and employees, during their incumbency, from engaging in the private practice of their profession "unless authorized by the Constitution or law, provided that such practice will not conflict or tend to conflict with their official functions." This is the general law which applies to all public officials and employees.

For elective local government officials, Section 90 of RA 7160¹² governs:

SEC. 90. Practice of Profession. - (a) All governors, city and municipal mayors are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives.

(b) Sanggunian members may practice their professions, engage in any occupation, or teach in schools except during session hours: Provided, That sanggunian members who are members of the Bar shall not:

(1) Appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverse party;

(2) Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office;

(3) Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official; and

(4) Use property and personnel of the Government except when the sanggunian member concerned is defending the interest of the Government.

(c) Doctors of medicine may practice their profession even during official hours of work only on occasions of emergency: Provided, That the officials concerned do not derive monetary compensation therefrom.

This is a special provision that applies specifically to the practice of profession by elective local officials. As a special law with a definite scope (that is, the practice of profession by elective local officials), it constitutes an exception to Section 7(b)(2) of RA 6713, the general law on engaging in the private practice of profession by public officials and employees. Lex specialibus derogat generalibus.¹³

Under RA 7160, elective local officials of provinces, cities, municipalities and barangays are the following: the governor, the vice governor and members of the sangguniang panlalawigan for provinces; the city mayor, the city vice mayor and the members of the sangguniang panlungsod for cities; the municipal mayor, the municipal vice mayor and the members of the sangguniang bayan for municipalities and the punong barangay, the members of the sangguniang barangay and the members of the sangguniang kabataan for barangays.

Of these elective local officials, governors, city mayors and municipal mayors are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives. This is because they are required to render full time service. They should therefore devote all their time and attention to the performance of their official duties.

On the other hand, members of the sangguniang panlalawigan, sangguniang panlungsod or sangguniang bayanmay practice their professions, engage in any occupation, or teach in schools except during session hours. In other words, they may practice their professions, engage in any occupation, or teach in schools outside their session hours. Unlike governors, city mayors and municipal mayors, members of the sangguniang panlalawigan,sangguniang panlungsod or sangguniang bayan are required to hold regular sessions only at least once a week.¹⁴ Since the law itself grants them the authority to practice their professions, engage in any occupation or teach in schools outside session hours, there is no longer any need for them to secure prior permission or authorization from any other person or office for any of these purposes.

While, as already discussed, certain local elective officials (like governors, mayors, provincial board members and councilors) are expressly subjected to a total or partial proscription to practice their profession or engage in any occupation, no such interdiction is made on the punong barangay and the members of the sangguniang barangay. Expressio unius est exclusio alterius.¹⁵ Since they are excluded from any prohibition, the presumption is that they are allowed to practice their profession. And this stands to reason because they are not mandated to serve full time. In fact, the sangguniang barangay is supposed to hold regular sessions only twice a month.¹⁶

Accordingly, as punong barangay, respondent was not forbidden to practice his profession. However, he should have procured prior permission or authorization from the head of his Department, as required by civil service regulations.

A Lawyer In Government Service Who Is Not Prohibited To Practice Law Must Secure Prior Authority From The Head Of His Department

A civil service officer or employee whose responsibilities do not require his time to be fully at the disposal of the government can engage in the private practice of law only with the written permission of the head of the department concerned.¹⁷ Section 12, Rule XVIII of the Revised Civil Service Rules provides:

Sec. 12. No officer or employee shall engage directly in any private business, vocation, or professionor be connected with any commercial, credit, agricultural, or industrial undertaking without a written permission from the head of the Department: Provided, That this prohibition will be absolute in the case of those officers and employees whose duties and responsibilities require that their entire time be at the disposal of the Government; Provided, further, That if an employee is granted permission to engage in outside activities, time so devoted outside of office hours should be fixed by the agency to the end that it will not impair in any way the efficiency of the officer or employee: And provided, finally, that no permission is necessary in the case of investments, made by an officer or employee, which do not involve real or apparent conflict between his private interests and public duties, or in any way influence him in the discharge of his duties, and he shall not take part in the management of the enterprise or become an officer of the board of directors. (emphasis supplied)

As punong barangay, respondent should have therefore obtained the prior written permission of the Secretary of Interior and Local Government before he entered his appearance as counsel for Elizabeth and Pastor. This he failed to do.

The failure of respondent to comply with Section 12, Rule XVIII of the Revised Civil Service Rules constitutes a violation of his oath as a lawyer: to obey the laws. Lawyers are servants of the law, vires legis, men of the law. Their paramount duty to society is to obey the law and promote respect for it. To underscore the primacy and importance of this duty, it is enshrined as the first canon of the Code of Professional Responsibility.

In acting as counsel for a party without first securing the required written permission, respondent not only engaged in the unauthorized practice of law but also violated civil service rules which is a breach of Rule 1.01 of the Code of Professional Responsibility:

Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. (emphasis supplied)

For not living up to his oath as well as for not complying with the exacting ethical standards of the legal profession, respondent failed to comply with Canon 7 of the Code of Professional Responsibility:

CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND THE DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR. (emphasis supplied)

Indeed, a lawyer who disobeys the law disrespects it. In so doing, he disregards legal ethics and disgraces the dignity of the legal profession.

Public confidence in the law and in lawyers may be eroded by the irresponsible and improper conduct of a member of the bar.¹⁸ Every lawyer should act and comport himself in a manner that promotes public confidence in the integrity of the legal profession.¹⁹

A member of the bar may be disbarred or suspended from his office as an attorney for violation of the lawyer's oath²⁰ and/or for breach of the ethics of the legal profession as embodied in the Code of Professional Responsibility.

WHEREFORE, respondent Atty. Vicente G. Rellosa is hereby found GUILTY of professional misconduct for violating his oath as a lawyer and Canons 1 and 7 and Rule 1.01 of the Code of Professional Responsibility. He is therefore SUSPENDED from the practice of law for a period of six months effective from his receipt of this resolution. He is sternly WARNED that any repetition of similar acts shall be dealt with more severely.

Respondent is strongly advised to look up and take to heart the meaning of the word delicadeza.

Let a copy of this resolution be furnished the Office of the Bar Confidant and entered into the records of respondent Atty. Vicente G. Rellosa. The Office of the Court Administrator shall furnish copies to all the courts of the land for their information and guidance.

SO ORDERED.

FACTS:

Complainant Wilfredo M. Catu is a co-owner of a lot and the building erected thereon located in Manila. His mother and brother contested the possession of Elizabeth C. Diaz-Catu and Antonio Pastor of one of the units in the building. The latter ignored demands for them to vacate the premises. Thus, a complaint was initiated against them in the Lupong Tagapamayapa of Barangay. Respondent, as punong barangay, summoned the parties to conciliation meetings. When the parties failed to arrive at an amicable settlement, respondent issued a certification for the filing of the appropriate action in court.Respondent entered his appearance as counsel for the defendants in the (subsequent ejectment) case. Complainant filed the instant administrative complaint, claiming that respondent committed an act of impropriety as a lawyer and as a public officer when he stood as counsel for the defendants despite the fact that he presided over the conciliation proceedings between the litigants as punong barangay.

ISSUE:

Whether or not Atty. Rellosa violated the Code of Professional Responsibility.

HELD:

YES. Respondent suspended for six (6) months.

RATIO:

[R]espondent was found guilty of professional misconduct for violating his oath as a lawyer and Canons 1 and 7 and Rule 1.01 of the Code of Professional Responsibility.

A civil service officer or employee whose responsibilities do not require his time to be fully at the disposal of the government can engage in the private practice of law only with the written permission of the head of the department concerned in accordance with Section 12, Rule XVIII of the Revised Civil Service Rules.

Respondent was strongly advised to look up and take to heart the meaning of the word delicadeza.

Noriega v. Sison, GR L-24548, October 27, 1983

A.M. No. 2266 October 27, 1983

HERMINIO R. NORIEGA, complainant, 
vs.
ATTY. EMMANUEL R. SISON, respondent.
Herminio R. Noriega for complainant.
Emmanuel R. Sison in his own behalf.

GUERRERO, J.:
This is a complaint for disbarment filed on June 3, 1981 by Herminio R. Noriega against Atty. Emmanuel R. Sison "admitted to the Bar on March 31, 1976) on the ground of malpractice through gross misrepresentation and falsification.
Complainant Noriega alleges that respondent Sison is a regular and permanent employee of the Securities and Exchange Commission (SEC) as a Hearing Officer and as such, "is mandated to observe strictly the civil service rules and regulations, more particularly ... the prohibition of government employees to practice their professions"; that to circumvent the prohibition and to evade the law, respondent assumed a different name, falsified his Identity and represented himself to be one "Atty. Manuel Sison", with offices at No. 605 EDSA, Cubao, Quezon City, "at the times that he will handle private cases"; that "Manuel Sison" is not listed as a member of the Bar in the records of the Supreme Court; that under his said assumed name, respondent is representing one Juan Sacquing, the defendant in Case No. E01978 before the Juvenile and Domestic Relations Court of Manila, submitting pleadings therein signed by him respondent) under his assumed name, despite his full knowledge That "Manuel Sison" is not a member of the Bar and that his acts in doing so are illegal and unlawful. ¹ Xerox copies of pertinent documents, pleadings, orders and notices are annexed to the complaint to support the material allegations therein.
As requireD, respondent filed his Answer on August 20, 1981. He attached thereto a copy of the written authorization given by Julio A. Sulit, Jr., Associate Commissioner of the Securities and Exchange Commission, for him to appear as counsel of Juan Sacquing, a close family friend, in the Juvenile and Domestic Relations Court JDRC of Manila, Respondent alleges that he never held himself out to the public as a practicing lawyer; that he provided legal services to Sacquing in view of close family friendship and for free; that he never represented himself deliberately and intentionally as "Atty. Manuel Sison" in the Manila JDRC where, in the early stages of his appearance, he always signed the minutes as "Atty. Emmanuel R. Sison", and in one instance, he even made the necessary correction when the court staff wrote his name as Atty Manuel Sison"; that due to the "inept and careless work of the clerical staff of the JDRC", notices were sent to "Atty. Manuel Sison", at 605 EDSA, Cubao, Quezon City, where respondent's parents conduct a printing office and establishment, which notices were honored by the personnel of said office as respondent's family has called respondent by the nickname "Manuel"; that respondent did not feel any necessity to correct this error of the JDRC since he "could use his nickname 'Manuel' interchangeably with his original true name as a formal name, and its use was not done for a fraudulent purpose nor to misrepresent"; and, that this administrative case is only one of the numerous baseless complaints brought by complainant against respondent, the former being a disgruntled loser in an injunction case in the SEC heard before respondent as Hearing Officer.
In resolving this disbarment case, We must initially emphasize the degree of integrity and respectability attached to the law profession. There is no denying that the profession of an attorney is required after a long and laborious study. By years of patience, zeal and ability the attorney acquires a fixed means of support for himself and his family. This is not to say, however, that the emphasis is on the pecuniary value of this profession but rather on the social prestige and intellectual standing necessarily arising from and attached to the same by reason of the fact that every attorney is deemed an officer of the court.
The importance of the dual aspects of the legal profession has been wisely put by Chief Justice Marshall of the United States Court when he said:

On one hand, the profession of an Atty. is of great importance to an individual and the prosperity of his life may depend on its exercise. The right to exercise it ought not to be lightly or capriciously taken from him. On the other hand, it is extremely desirable that the respectability of the Bar should be maintained and that its harmony with the bench should be preserved. For these objects, some controlling power, some discretion ought to be exercised with great moderation and judgment, but it must be exercised. ²

The purpose of disbarment, therefore, is not meant as a punishment depriving him of a source of livelihood but is rather intended to protect the administration of justice by requiring that those who exercise this function should be competent, honorable and reliable in order that the courts and clients may rightly repose confidence in them. ³
In disbarment proceedings, the burden of proof rests upon the complainant, and for the court to exercise its disciplinary powers, the case against the respondent must be established by clear, convincing, and satisfactory proof. Considering the serious consequences of the disbarment or suspension of a member of the Bar, this Court has consistently held that clear preponderant evidence is necessary to justify the imposition of the administrative penalty. ⁴
This Court has also held in re Atty. Felizarda M. de Guzman ⁵ that to be made the basis of suspension or disbarment, the record must disclose as free from doubt a case which compels the exercise by this Court of its disciplinary powers. The dubious character of the act done as well as the motivation thereof must be clearly demonstrated. An attorney enjoys the legal presumption that he is innocent of the charges preferred against him until the contrary is proved; and as an officer of the court, that he performed his duty in accordance with his oath.
Examining the facts of this case, We hold that the allegations in the complaint do not warrant disbarment of the respondent. There is no evidence that the respondent has committed an act constituting deceit, immoral conduct, violation of his oath as a lawyer, wilful disobedience of any lawful order of the court, or corruptly and willfully appearing as an attorney to a part to a case without attorney to do so. ⁶
There is no violation of the Civil Service Rules and Regulations for his appearance as counsel for the defendant in the JDRC Case No. E-01978 was with authority given by the Associate Commisioner Of SEC, Julio A. Sulit, Jr.
This Court also holds that under the facts complained of supported by the annexes and the answer of respondent likewise sustained by annexes attached thereto and the reply of the complainant, the accusation that respondent with malice and deliberate intent to evade the laws, assumed a different name, falsified his Identity and represented himself to be one "ATTY. MANUEL SISON" with offices at No. 605 EDSA, Cubao, Quezon City at the times that he will handle private cases, is not meritorious. Neither is the charge referred to is that pending the slantiated. The only case DRC Case No. E-01978 wherein respondent appeared as counsel for the defendant. It being an isolated case, the same does not constitute the practice of law, more so since respondent did not derive any pecuniary gain for his appearance because respondent and defendant therein were close family friends. Such act of the respondent in going out of his way to aid as counsel to a close family friend should not be allowed to be used as an instrument of harrassment against respondent.
The ruling in Zeta vs. Malinao (87 SCRA 303) wherein the respondent was dismissed from the service because being a government employee, he appeared as counsel in a private case, cannot be applied in the case at bar because the respondent in said Zeta case had appeared as counsel without permission from his superiors.
Although the complaint alleges violation of civil service rules, the complainant however states that the basis of his complaint for disbarment is not the respondent's act of appearing as counsel but the unauthorized use of another name. ⁷
A perusal of the records however, reveals that whereas there is indeed a pleading entitled "Objection/Opposition to the 2 Formal Offer of Evidence" (Annex "C" to the Complaint for Disbarment, which is signed as "Manuel Sisori", counsel for defendant, 605 EDSA, Cubao, Quezon City, p. 7 of the Records), there is, however, no showing that respondent was thus motivated with bad faith or malice, for otherwise lie would not have corrected the spelling of his name when the court staff misspelled it in one of the minutes of the proceeding. Moreover, We find no reason or motive for respondent to conceal his true name when he have already given express authority by his superior to act as counsel for Juan Sacquing in the latter's case pending before the JDRC And while it may be True that subsequent errors were made in sending notices to him under the name "Atty. Manuel Sison, ' the errors were attributable to the JDRC clerical staff and not to the respondent.
At most, this Court would only counsel the respondent to be more careful and cautious in signing his name so as to avoid unnecessary confusion as regards his Identity.
At this point, We are constrained to examine the motives that prompted the complainant in filing the present case. An examination of the records reveals that the complainant was a defendant in the Securities and Exchange Commission (SEC) Case No. 1982 filed by the Integrated Livestock Dealers Inc. and Teofisto Jiao against seven (7) respondents including the complainant, seeking to oust the complainant and his codefendants from acting as officers of the Integrated Livestock Dealers lnc. then pending before respondent as Hearing Officer of the SEC, who after trial decided the case against the herein complainant. From this antecedent fact, there is cast a grave and serious doubt as to the true motivation of the complainant in filing the present case, considering further that other administrative charges were filed by the complainant against respondent herein before the SEC, JDRC and the Fiscal's office in Manila.
We hold that complainant's repeated charges or accusations only indicate his resentment and bitterness in losing the SEC case and not with the honest and sincere desire and objectives "(1) to compel the attorney to deal fairly and honestly with his client;" (Strong vs. Munday 52 N.J. Eq. 833, 21 A. 611) and "(2) to remove from the profession a person whose misconduct has proved him unfit to be entrusted with the duties and responsibilities belonging to the office of an attorney." (Ex parte Brounsal Cowp 829; 83 Reprint; 6 C.J., p. 581; see In re de los Angeles Adm. Case No. 225, Sept. 31, 1959, cited in Moran, Comments on the Rules of Court, Vol. 6, p. 242).s
In the light of the foregoing, We find no reason or necessity to refer this complaint to the Solicitor General for investigation, report and recommendation.
WHEREFORE, this case is hereby DISMISSED for lack of merit.

SO ORDERED.

FACTS: In 1981, Noriega filed a disbarment case against Sison. Noriega alleged that Sison as a hearing officer of the Securities and Exchange Commission is not allowed to engage in the private practice of law; yet Noriega alleged that Sison has created another identity under the name “Manuel Sison” in order for him to engage in private practice and represent one Juan Sacquing before a trial court in Manila.

Sison, in his defense, argued that he is in fact representing Juan Sacquing but the same is with the permission of the SEC Commissioner; that he never held himself out to the public as a practicing lawyer; that he provided legal services to Sacquing in view of close family friendship and for free; that he never represented himself deliberately and intentionally as “Atty. Manuel Sison” in the Manila JDRC where, in the early stages of his appearance, he always signed the minutes as “Atty. Emmanuel R. Sison”, and in one instance, he even made the necessary correction when the court staff wrote his name as Atty. Manuel Sison”; that due to the “inept and careless work of the clerical staff of the JDRC”, notices were sent to “Atty. Manuel Sison”,

ISSUE: Whether or not the disbarment case should prosper.

HELD: No. The arguments of presented by Sison is well merited and backed by evidence. The allegations in the complaint do not warrant disbarment of the Sison. There is no evidence that Sison has committed an act constituting deceit, immoral conduct, violation of his oath as a lawyer, willful disobedience of any lawful order of the court, or corruptly and willfully appearing as an attorney to a part to a case without attorney to do so. His isolated appearance for Sacquing does not constitute private practice of law, more so since Sison did not derive any pecuniary gain for his appearance because Sison and Sacquing were close family friends. Such act of Sison in going out of his way to aid as counsel to a close family friend should not be allowed to be used as an instrument of harassment against him.

In re David, Adm Case No. 98, July 13, 1953

1. LAWYERS; SE defines "practice the profession." - Practice as a lawyer is to practice the acts of his profession. To prepare and file motions requesting the execution of a sentence, the demolition of the homes of the defendants in the case asking the court to order the sheriff to betray him the amounts charged in the case are acts that fall within the exercise of the profession advocacy; the allegation and submit memorandum to the Appeals Tribunal do is practice as a lawyer, because an agent can not do it; the charge rents of more than a hundred defendants to issue receipts and signed as the applicant's counsel is to exercise the profession.

2. Id .; Id .; - The fact that the lawyer had not put in his motion requesting execution acting as a lawyer but as an agent and employee of the applicant, does not alter the nature of its services are certainly professional services of a lawyer. Hiding acting as a lawyer and was only pretending agent, their situation worsens; which is more guilty, covered with a mask, he shot his enemy who makes a pool and a view of the public face.

3. ID .; ATTORNEY SUSPENDED exercising the profession. - The suspended lawyer practicing the profession during the period of suspension will be completely disabled for such a profession in the Philippines with the consequent cancellation of the certificate issued in their favor as such attorney.

D E C I S I O N

PABLO, M. :

In the administrative case No. 35 respondent was suspended for misfeasance in the exercise of his profession for a period of five years from the 9 November 1949. The appeal supports this suspension in its report 17 March 1951; however, continued to exercise the profession within the period of the suspension, November 9th 1949 and November 8, 1954.

On February 28, 1950 the Respondent submitted a claim (Exhibit J) in R. G. CA No. 4792-R cause, Tan Tek v Sy. Maliwanag not as counsel for Sy Tan Tek, but with the following words: "for and in Behalf of Tan Tek Sy"; on 26 January 1951 sent it by certified mail notification of the decision in that case (Exhibit G), confirming the decision of the Court of First Instance; on March 13, 1951 filed a motion in this court - and returned the file - requesting the issuance of a warrant of execution, which motion is signed as follows:

"TAN TEK SI

"By (Sgd.) FELIX P. DAVID,

"c/o Atty. Felix P. David,

"Corner Dagupan and Azcarraga St.,

"Filipinas Saw Mill & Construction,

"Manila" 

The present appeal therefore written not as they do practicing lawyers, but as an agent Sy Tan Tek. In the civil case No. 3658 of the Court of First Instance of Manila, called Malayan Saw Mill, Inc. against Tolentino, the Respondent filed a brief on September 25, 1950, requesting an order to demolish the homes of the respondents (Exhibit TO); on October 10, 1950 I filed a motion asking the Sheriff of Manila was authorized to pay "the amount or other amount Such as May be Collected by the Sheriff from time to time" (Exhibit B); on November 13, 1950 I present another motion (Exhibit C) asking another demolition order, signing three letters, Exhibits A, B and C, as counsel for the applicant; the exhibits B to B-34 show that was receiving payments amounts of several defendants as counsel for the applicant; the oldest receipt is dated 12 February 1950 and last December 7, 1950. In defense resorted says appeared as counsel for Tan Tek Sy from the Municipal Court of Manila in 1948; which, being suspended, he had advised his client to seek other counsel to prepare the brief to be submitted to the Court of Appeal; when there were only two or three days and his client could not submit, he himself wrote and presented at the request of his client; the allegation that arrangement with the intention of his client to sign it, but as this was in Dagupan and could not sign and there was more than one day, then I sign it as follows: "Felix P. David, for and in Behalf of the appellee. " On September 25, 1950 I present to the Court of Appeal a memorandum in reply to the appellant, signed as this allegation.

"In order - says the appeal - to show That I Did not Have the intention to disregard the suspension of the Supreme Court, I did not With the knowledge of even Identified Sy Tan Tek myself as the attorney for the appellee but in good faith, I signed for and in Behalf of the appellee without designating That I am practicing as attorney-at-law. "cralaw virtua1aw library

We do not think this justified the performance of the resorted to submit the claim and its memorandum on behalf of his client being suspended in the exercise of their profession; knowing I was suspended, I ought to have presented either as an agent or a lawyer; I was in no obligation to continue to serve his client before the Court of Appeal; I must have noticed that your client was suspended in the exercise of his profession as a lawyer and was to advise him to employ another in his place if he wanted to be represented; ought not contravene the express order of this Court; He must know that he who is not a practicing lawyer can not appear for trial before a court except before a justice of the peace. When presenting its case and its memorandum with the words "For and in Behalf of the Appellee" violated Article 31 of Rule 127 which states that "In other courts, a party can run their own dispute personally or with the help of a lawyer, and his appearance must be made in person or by a member of the Forum duly authorized. " An agent or an attorney or a member of the Forum suspended may not appear for trial.

To explain the presentation of motions in case No. 3655, Malayan Saw Mill, Inc. against Tolentino, the appeal says I act in good faith, that I present not to disobey the decision of this Court but to collect their fees. As an officer of the Forum, the lawyer must comply with the judgment of the Court above all other considerations. We think not acting in good faith when, putting his interest in collecting their fees, engaged in the profession knowing that he was forbidden to exercise it. But he had not submitted their motions exhibits A, B and C and issued receipts B to B-34 amounts recovered from the defendants, the Respondent could collect their fees directly from their already demanding client, and claiming them in accordance with Article 33 Rule 127.

The appeal says that if appeared on March 2, 1950 in case No. 7679 of the Court of First Instance of Manila, Juan de la Torre against Philippine Trust Co., was by request of his brother Juan de la Torre and also the I do not charge fees for his appearance because he knew he was suspended from the exercise of the profession. Although not taken into account this hearing, the Respondent can not save for having provided various professional services and reported.

Practice as a lawyer is to practice the acts of his profession. To prepare and file motions requesting the execution of the judgment, the demolition of the houses of the defendants, asking the court to order the Sheriff to betray him the amounts collected are acts that fall within the exercise of the legal profession; the allegation and submit memorandum to the Court of Appeal is to exercise the legal profession, because an agent can not do it; the charge rents of the 109 defendants issuing 35 receipts and signed as lawyer for the plaintiff, is to exercise the profession.

The fact that he had not put in his motion for order execution in Malayan Saw Mill, Inc. against Tolentino, who acted as a lawyer but as an agent and employee of the Philippines Sawmill and Construction, does not alter the nature of its services they are certainly professional services of a lawyer; but hiding who acted as counsel for Tan Tek Sy and pretending that it was only an agent, their situation worsens: it is more guilty that covered with a mask, shot his enemy who does open face and in view the public; Hence the criminal law imposes more severe sentence in the first case.

The evidence of record shows that respondent Felix P. David practiced law attorney intentionally disobeying the decision of the Court of September 30, 1949 , Administrative Case No. 35 . Therefore , he is ineligible to practice as a lawyer in the Philippines , it is declared canceled the certificate issued in their favor to practice and directed to return it to the Clerk of this Court.

FACTS: Respondent was suspended for bad practices in the exercise of his profession as a lawyer for a period of five years from the November 9, 1949. The defendant admits this suspension in `his written report filed on March 17, 1951, yet he continued to exercise the profession within the period of suspension, November 9, 1949 to November 8, 1954.

On Feb 28 1950 the respondent file a claim in the case of Tan Tek vs Sy not as a lawyer but as an agent. (For and in behalf of Tan Tek Sy) CFI decided in favor of Tan Tek, subsequently Atty Felix David filed a motion for execution. In another civil case of the CFI called Malayan Saw Mill, Inc vs Tolentino, defendant filed a brief for an order to demolish homes.

“In order - says the appeal - to show That I did not Have the intention to disregard the suspension of the Supreme Court, I did not With The Knowledge of Tan Tek Identified Sy Even myself as the attorney for the Appelles But In Good Faith, I signed for and in Behalf of the appellee Without Designating That I am Practicing as attorney-at-law.”

ISSUE: Whether the acts of Atty Felix David is tantamount to practice of law.

HELD: Yes. Neither can he allow his name to appear in such pleading by itself or as part of firm name under the signature of another qualified lawyer because the signature of an agent amounts to signing of a non-qualified senator or congressman, the office of an attorney being originally an agency, and because he will, by such act, be appearing in court or quasi-judicial or administrative body in violation of the constitutional restriction. “He cannot do indirectly what the Constitution prohibits directly.”

Ramos v. Manalac, GR L-2610, June 16, 1951

G.R. No. L-2610             June 16, 1951

CEFERINA RAMOS, ET ALS., petitioners,
vs.
ANATOLIO C. MAÑALAC, or his successor, as Judge of the Court of First Instance of Pangasinan, Second Branch, and FELIPE LOPEZ, respondents.

D. Ignacio Castillo for petitioners.
Primicias, Abad, Mencias and Castillo for respondents.

BAUTISTA ANGELO, J.:

This is a petition for certiorari seeking the annulment of an order of the Court of First Instance of Pangasinan dated September 22, 1947, placing one Felipe Lopez in possession of two (2) parcels of land claimed to belong to petitioners, and of the decision rendered by the same court on August 24, 1939, ordering the foreclosure of the mortgage executed on said property to satisfy the payment of an obligation.

The facts involved in this case are: On August 31, 1933, Victoriano, Leonardo, Vicenta, Isabina, Gregoria, Ceferina, Jose and Geronimo, all surnamed Ramos, executed a power of attorney in favor of their brother Eladio Ramos giving the latter authority to encumber, mortgage and transfer in favor of any person a parcel of land situated in Bayambang, Pangasinan. On August 9, 1934, by virtue of the power of attorney abovementioned, Eladio Ramos executed in favor of one Romualdo Rivera a mortgage on therefore said property. Together with another parcel of land, to guarantee the payment of loan of 300, with interest thereon at the rate of 12% per annum. When Eladio Ramos failed to pay the obligation on its date of maturity, Romualdo Rivera, the mortgage, filed an action to foreclosure the mortgage, making as parties-defendants the herein petitioners, brothers and sisters of Eladio Ramos (civil case No. 7668). The summons was served only upon Eladio Ramos, who acknowledge the service in his own behalf and in that services of Attorney Lauro C. Maiquez, who put in his appearance for all the defendants, and submitted an answer in their behalf. After trial, at which both parties presented their evidence, the court rendered decision ordering Eladio Ramos to pay to the plaintiff his obligation of 300, with interest thereon at the rate of 12 per cent per annum, from August 9, 1934, until its full payment, plus the sum of 100 as attorney's fees, and ordering the foreclosure of the mortgage upon failure of Eladio Ramos to pay the judgment within ninety (90) days from the date the decision becomes final. The decision was rendered on August 24, 1939. As Eladio Ramos failed to pay the judgment within the period therein specified, on motion of the plaintiff, the court ordered the sale at public auction of the mortgaged properties, which were sold to the plaintiff as the highest bidder and the provincial sheriff issued the corresponding deed of the sale in his favor. The sale was confirmed by the court on April 1, 1941. On August 21, 1947, Romualdo Rivera sold the properties to Felipa Lopez, who later filed a motion praying that she be placed in possession thereof. This motion was granted on September 22, 1947. As the petitioners did not heed the order, they were summoned by the court to explain why they should no be punished for contempt for their refusal to comply with the writ of possession, to which they answered contending that said writ partakes of the nature of an action and as it was issued after more than five years, the court acted in excess of its jurisdiction, and that the sale conducted by the sheriff was illegal because petitioners were not properly served with summons as defendants in the foreclosure suit. The explanation given by petitioners having been found to be unsatisfactory, the court insisted in its order and threatened to punish the petitioners as for contempt of court if they failed to obey the order. Hence this petition for certiorari.

The issues posed by the petitioners relate (1) to the validity of the decision rendered by the lower court on August 24, 1939, in civil case No. 7668, ordering the foreclosure of the mortgage excluded by Eladio Ramos on the properties in question; and (2) to the validity of the order of the court dated September 22, 1947, directing the issuance of a writ of possession to place respondent Felipa Lopez in possession to place respondent Felipa Lopez in possession of the properties purchased by her from the mortgagee.

As regards the first issue, we are of the opinion that the claim of the petitioners can not be sustained for the reason that it is in the nature of a collateral attack to a judgment which on its face is valid and regular and has become final long ago. It is a well-known rule that a judgment, which on its face is valid and regular, can only be attacked in separate action brought principally for the purpose (Gomez vs. Concepcion, 47 Phil., 717).

Granting for the sake of argument that petitioners were not properly served with summons in civil case No. 7668, as they claim, the defect in the service was cured when the petitioners voluntarily appeared and answered the complaint thru their attorney of record, Lauro C. Maiquez who appeared in their behalf in all stages of the case. Since an Attorney Maiquez who appeared for the petitioners must be presumed to have been authorized by them when he appeared in their behalf in all the stages of the case. The security and finality of judicial proceedings require that the evasions and tergiversations of unsuccessful litigants should be received with undue favor to overcome such presumption (Tan Lua vs. O'Brien, 55 Phil., 53). This is specially so when, as in the instant case, it is only after the lapse of more than nine (9) years after the judgment has been rendered that petitioners thought of challenging the jurisdiction of the court.

The second issue raised by the petitioners is not also taken, for the simple reason that the issuance of a writ of possession in a foreclosure proceedings is not an execution of judgment within the purview of section 6, Rule 39, of the Rules of Court, but is merely a ministerial and complementary duty of the court can undertake even after the lapse of five (5) years, provided the statute of limitations and the rights of third persons have not intervened in the meantime (Rivera vs. Rupac, 61 Phil., 201). This is the correct interpretation of section 6, Rule 39, in relation to section 3, Rule 70 of the Rules of Court. This is a case where the judgment involved is already final executed, and the properties mortgaged sold by order of the court, and the properties mortgaged sold by order of the court, and purchaser thereof has transferred them to a third person, who desires to be placed in their possession. In the exercise of its interlocutory duty to put and end to the litigation and save multiplicity of an action, no plausible reason is seen why the court cannot issue a peremptory order to place the ultimate purchaser in the possession of the property.

The general rule is that after a sale has been made under a decree in a foreclosure suit, the court has the power to give possession to the purchaser, and the latter will not be driven to an action at law to obtain possession. The power of the court to issue a process and place the purchaser in possession, is said to rest upon the ground that it has power to enforce its own decrees and thus avoid circuitous action and vexatious litigation (Rovero de Ortega vs. Natividad, 71 Phil., 340).

It has also been held:

In a foreclosure suit, where no third person not a party thereto intervenes and the debtor continues in possession of the real property mortgaged, a writ of possession is a necessary remedy to put an end to the litigation, inasmuch as section 257 of the Code of Civil Procedure (now section 3, Rule 70 of the Rules of Court) provides that the confirmation of the sale by judicial decree operates to divest all the parties to the action of their respective rights and vests them in the purchaser. According to this legal provision, it is the duty of the competent court to issue a writ so that the purchaser may be placed in the possession of the property which he purchased at the public auction sale and become his by virtue of the final decree confirming the sale. (Rivera vs. Rupac, 61 Phil., 201). Emphasis supplied.

The following American authorities may also be involved in support of the order of the lower court:

A court of equity, having obtained jurisdiction in action for the foreclosure of the mortgage, and having decreed a sale of the premises, RETAINS its jurisdiction and has authority to put the purchaser in possession of the property, without compelling him to resort to an action of law. (27 Cyc., 1937; 42 C. J., 271 and cases there cited.) (Bold types and emphasis supplied).

. . . It does not appear to consist with sound principle that the court which has exclusive authority to foreclosure the equity of redemption of a mortgagor, and can call all the parties in interest before it, and decree a sale of the mortgaged premises, should not be able even to put the purchaser into possession against one of the very parties to the suit, and who is bound by the decree. When the court has obtained jurisdiction of a case, and has investigated and decided upon the merits, it is not sufficient for the ends of justice merely to declare the right without affording the remedy. If it was to be understood that after a decree and sale mortgaged premises, the mortgagor, or other party to the suit, or perhaps, those who have been let into possession by the mortgagor, pendente lite, could withhold the possession in defiance of the authority of this court, and compel the purchaser to resort to a court of law, I apprehend that the delay and expense and inconvenience of such a course of proceeding would greatly impair the value and diminish the results of sales under a decree. (See Notes to Wilson v. Polk, 51 Am. D., 151). (Kershew v. Thompson, 4 Johns, Ch., 609).

Wherefore, the petition is dismissed with costs against the petitioners.

Paras, C. J., Feria, Bengzon, Montemayor and Jugo, JJ., concur.

Separate Opinions

PABLO, M., concurrente:

El 16 de junio de 1948, el Juez del Juzgado de Primera Instancia de Pangasinan ordeno a los recurrentes que compareciesen el 8 de julio del mismo año, alas 8:30 a.m., para explicar sus rzaones porque no deben ser castigados por desacato por rehusar cumplir la orden de ejecucion expedida en la causa civil No. 7668 el 5 de enero de 1948. Los recurrentes presentaron una mocion de reconsideracion que fue denegada. Y acuden ante este Tribunal en un recurso de certiorari. La solitud debe denegarse, pues contra cualquiera resolucion sobre el incidente de desacato pueden los recurrentes presentar apelacion. El articulo 1 de la Regla 67 dispone que "Cuando un juzgado, junta, o funcionario investido de facultades judiciales, hubiere actuado sin jurisdiccion o se hubierse excedido de su competencia o con grave abuso de ella, y, en la tramitacion ordinaria del caso, no existiere el recurso de apelacion ni ninguno otro que fuese llano, expedito y adecuado, toda presona por ello agraviada podra presentar solicitud bajo juramento ant e el Tribunal correspondiente alegando con certeza los hechos del caso y pidiendo se dicte sentencia que anule o modifique, con arrespidiendo se dicte sentencia que anule o modifigue, con arreglo a derecho, lo actuado por dicho Tribunal, junta o funcionario, con las costas." Esta disposicion esta interpretada en varias ocasiones:

Solamente procede el remedio de certiorari cuando un tribunal, en el ejercicio de sus funciones judiciales, haya actuado sin jurisdiccion o con exceso de ella o con grave abuso de discrecion y que, en la tramitacion ordinaria, no tiene el recurrente el remedio sencillo y expedito de apelacion. (Regla No. 67, articulo 1). Si por cada error cometido por un juzgado inferior se permitiese corregirlo por medio del recurso de certiorari,los asuntos serian intrminables. (Regala contra El Juez del Juzgado de Primera Instancia de Bataan, 44 O.G., 30).

No. se expedira mandamiento de certiorari a menos que resulte de una manera clara que el Juez contra el cual se dirige procedio sin jurisdiccion o se excedio en ella o abuso gravemente en el ejercicio de su discreccion; no se expedira para subsanar errores de procedimiento o enmendar conclusiones de hecho o de derecho erroneas. Si el Juez tiene jurisdiccion sobre la materia litigiosa y sobre las partes, todo cuando decida sobre las custiones pertinentes a la cause son resoluciones que estan dentro de su jurisdiccion y por irregulares o reeneas que sean no pueden corregirse mediante certiorari. (Ong Sit contra Piccio y otros, 44 O.G. 4915.)

De si el Juzgado inferior erro al dictar ordenes, el error debe suscitarse en una apelacion y no en un recurso de certiorari. Solamente se recurre a este remedio cuenda no cabe apelacion. Demaisip y otra contra Makalintal y otros, 47 O.G., Supp. (1) 153.)

Tenian los recurrentes, en el curso ordinario de los procedimientos, un remedio para corregir cualquier error que pudiera haber cometido el Juzgado.

Por estas razones, es improcedente el recurso de certiorari.

TUASON, J., concurring and dissenting:

I am in complete agreement with the majority decision on the two propositions formulated in the opening paragraph, namely; (1) that the foreclosure of the mortgage and the sale of the mortgaged property was in accordance with law, and (2) that placing Felipa Lopez in Possession of the said property was a natural corollary of the first. But the appealed order also threatens the petitioners with punishment for contempt if they refuse to vacate the lands. This, to me the most important feature of the order, has been ignored or brushed aside in the decision. By its sweeping denial of the petition, this Court sanctions the impending punishment. To this extent, I dissent.

In the case of U.S. vs. Ramayrat, 22 Phil., 183, the Court said:

A writ of execution to sheriff directing him to place a plaintiff in possession of property held by a defendant and failure or refusal on the part of the defendant to surrender the property does not constitute contempt or disobedience to an agent of authority as defined in art. 252, P.C. It is the duty of the sheriff to place the proper party in possession. Whether a refusal to deliver the property to the sheriff on demand would constitute contempt, quaere.

x x x           x x x           x x x

A person can not be punished because of his alleged disobedience of an order of court not addressed to him. A writ of execution issued by a justice of the peace to the sheriff directing the latter to place the plaintiff in possession of property held by the defendant, is not an order addressed to the defendant. Such an order must been addressed to an officer of the court and not to either the plaintiff or the defendant. The party in possession may have been unwilling to deliver the land, but such unwillingness does not constitute an act of disobedience to order of an agent of authorities, as defined by art. 252, P.C. The disobedience contemplated by said article consists in the failure or refusal to obey a direct judicial order and not an order which is merely declaratory of the rights of the parties. In the case at bar, while the order does direct that the party in possession shall surrender the property to the proper person, it does not and could not order his to do so to do. Instead of executing the judgment himself, the sheriff merely ordered the defendant to deliver the property. A sheriff has no power to require any person to perform an act which he himself is bound to perform. Under such circumstances, disobedience on the part of the person to whom the sheriff gave such an order does not constitute a crime.

Act 3170, subsequently passed, added a new paragraph to Section 232 of the Code of Civil Procedure, reading as follows:

A person guilty of any of the following acts may be punished as for contempt:

x x x           x x x           x x x

5. The person defeated in civil action concerning the ownership or possession of real estate who, after having been evicted by the sheriff from the realty under litigation in compliance with the judgment rendered, shall enter or attempt to enter upon the same for the purpose of executing acts of ownership or possession or who shall in any manner disturb possession by the person whom the sheriff placed in possession of said realty.

But the new enactment has not given courts a new power to punish the recalcitrant loser for contempt before he is evicted. It is only when he reenters or attempts to reenter after he is punishment. In the case at bar, the purchaser of the mortgaged property has never been placed in possession thereof by the sheriff, much less have the present occupants been evicted therefrom.

The validity of the lower court's order that is the subject of the present proceeding is not attacked on the ground of lack of authority of the court to punish for contempt for their refusal to quit lands; but this Court's decision in keeping silent on this vital point could or would, be construed as a green light signal for the respondent Judge to proceed with the enforcement of his said order with all it's intended ramifications.

I do not believe that the petitioners' action is punishable as for contempt on another ground. Although they were included as parties defendants in the foreclosure suit, yet the dispositive part of the judgment imposes no duty on them either to pay the mortgaged debt or to make delivery of the mortgaged property. As was said in U.S. vs.Ramayrat, supra, "the disobedience contemplated by Art. 232 of the Code of Civil Procedure consist in the failure or refusal to obey a direct judicial order and not an order which is merely declaratory of the rights of the parties."

                                                                                   

                                                                                   

CASE DIGEST

FACTS:

1.     RAMOS family executed power of attorney in favor of their brother Eladio Ramos:

1.     Gave Eladio authority to encumber, mortgage and transfer in favor of any person a parcel of land situated in Bayambang, Pangasinan.

                                              i.     Executed a mortgage under Rivera. Together with another parcel of land, to guarantee the payment of loan of 300, with interest thereon at the rate of 12% per annum.

                                             ii.     Eladio Ramos failed to pay the obligation on its date of maturity

1.   RIVERA filed an action to foreclosure the mortgage, making RAMOS defendants.

2.   Summons served only upon Eladio Ramos, who acknowledge the service in his own behalf and in that services of Attorney Lauro C. Maiquez, who put in his appearance for all the defendants, and submitted an answer in their behalf.

3.   Court ordered Eladio Ramos to pay to the plaintiff his obligation of 300, with interest thereon at the rate of 12 per cent per annum, from August 9, 1934, until its full payment, plus the sum of 100 as attorney's fees, and ordering the foreclosure of the mortgage upon failure of Eladio Ramos to pay the judgment within ninety (90) days from the date the decision becomes final.

                                           iii.     ELADIO RAMOS failed to pay the judgment within the period.

1.   Court ordered the sale at public auction of the mortgaged properties, which were sold RIVERA (highest bidder)

                                           iv.     RIVERA sold properties to Felipa Lopez, who later filed a motion praying that she be placed in possession.

                                             v.     RAMOS did not heed the order.

1.   Summoned by the court to explain why they should no be punished for contempt for their refusal to comply with the writ of possession.

2.   RAMOS answered contending that said writ partakes of the nature of an action and as it was issued after more than five years, the court acted in excess of its jurisdiction, and that the sale conducted by the sheriff was illegal because petitioners were not properly served with summons as defendants in the foreclosure suit.

a.    EXPLANATION UNSATISFACTORY.

b.   Follow or contempt of court.

ISSUE:

WON decision of lower court ordering foreclosure of mortgage excluded by ELADIO RAMOS is valid.YES.

WON order directing issuance of writ of possession to place LOPEZ in possession of properties purchased by her from mortgagee valid. YES.

HELD:

PETITION DISMISSED with costs against the petitioners.

1.     1^st ISSUE:

1.     CLAIM CANNOT BE SUSTAINED.

2.     Nature of a collateral attack to a judgment which on its face is valid and regular and has become final long ago.

                                              i.     Valid judgment can only be attached in separate action brought principally for the purpose.

                                             ii.     Granting that RAMOS were not served, defect in service was cured when RAMOS voluntarily appeared and answered the complaint thru their attorney of record.

                                           iii.     Since Attorney Maiquez appeared for RAMOS, it must be presumed him to have been authorized by them.

2.     2^nd ISSUE:

1.     Issuance of a writ of possession in a foreclosure proceeding is not an execution of judgment but a ministerial and complementary duty of the cour.

2.     Can undertake even after the lapse of five (5) years, provided the statute of limitations and the rights of third persons have not intervened.

                                              i.     SEC 6, RULE 39/ SEC 3, RULE 70: Judgment is already final, properties mortgaged sold by order of the court, purchaser thereof has transferred them to a 3rd person, who desires to be placed in their possession.

                                             ii.     GENERAL RULE: After a sale has been made under a decree in a foreclosure suit, court has the power to give possession to the purchaser.

1.   Purchaser will not be driven to an action at law to obtain possession.

2.   Power of the court to issue a process and place the purchaser in possession, rests upon the ground that it has power to enforce its own decrees and thus avoid circuitous action and vexatious litigation.

                                           iii.     In a foreclosure suit, 3^rd person not a party intervening and debtor continues in possession of the real property mortgaged, a writ of possession is a necessary remedy to put an end to the litigation.

1.   “Duty of the competent court to issue a writ so that the purchaser may be placed in the possession of the property which he purchased at the public auction sale and become his by virtue of the final decree confirming the sale.”