FIRST DIVISION

G.R. No. 144882             February 04, 2005

LUISA BRIONES-VASQUEZ, petitioner,
vs.
COURT OF APPEALS and HEIRS OF MARIA MENDOZA VDA. DE OCAMPO, respondents.

DECISION

AZCUNA, J.:

This is a petition for certiorari under Rule 65 of the Rules of Civil Procedure, assailing the Resolution
of the Court of Appeals in CA-G.R. CV No. 39025, dated June 9, 2000, which denied petitioner’s
motion for clarificatory judgment and the Resolution of the Court of Appeals, dated August 3, 2000,
which denied the motion for reconsideration.

Under an agreement denominated as a pacto de retro sale, Maria Mendoza Vda. De Ocampo

acquired a parcel of land from Luisa Briones. The latter thereunder reserved the right to repurchase
the parcel of land up to December 31, 1970. 1

Maria Mendoza Vda. De Ocampo passed away on May 27, 1979. On June 14, 1990, Hipolita
2 

Ocampo Paulite and Eusebio Mendoza Ocampo, the heirs of Maria Mendoza Vda. De Ocampo, filed
a petition for consolidation of ownership, alleging that the seller was not able to exercise her
privilege to redeem the property on or before December 31, 1970. 3

The Regional Trial Court (RTC) of Pili, Camarines Sur, Branch 32 rendered a Decision on January
4 

30, 1992 as follows:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. declaring that exh. "A " is a true pacto de retro sale;

2. declaring that the defendant can still redeem the property within 30 days from the finality of this
judgment, subject to the provisions of Art. 1616 of the New Civil Code;

3. No costs.

SO ORDERED. 5

Plaintiffs therein -- herein private respondents -- appealed the RTC Decision to the Court of
Appeals. On June 29, 1995, the Court of Appeals promulgated a Decision and disposed of the case
6  7 

in the following manner:

THE FOREGOING CONSIDERED, the contested decision is hereby set aside; and declaring the
1970 sale with right of repurchase, Exhibit "A," as one of an equitable mortgage.

SO ORDERED. 8
Respondents filed a motion for reconsideration which the Court of Appeals denied through a
Resolution, dated December 15, 1995. The Court of Appeals Decision became final and executory
9 

and entry of judgment was made on July 17, 1996. 10

Subsequently, at the RTC, both petitioner and respondents filed their respective motions for a writ of
execution. The RTC issued a writ of execution. However, the writ was returned unserved per
sheriff’s return which reads as follows:

Respectfully returned to this Court thru the Clerk of Court VI, RTC, Pili, Camarines Sur the herein
attached original copy of the Writ of Execution issued in the above-entitled case with the following
information, to wit:

That the plaintiffs [herein private respondents] were informed that the writ of execution was already
issued for implementation and that they should pay the necessary sheriff’s and kilometrage fees;

That [one of] the plaintiff[s] came to the Office of the Clerk of Court VI but did not deposit any
amount for the kilometrage fee and for the expenses in the implementation of the said writ, but
instead plaintiff said that he is not interested to implement such writ;

That the 60-day period within which the said writ should be implemented has already expired.

WHEREFORE, the original copy of the Writ of Execution is hereby returned unserved.

Cadlan, Pili, Camarines Sur – July 8, 1997

For the Clerk of Court VI and

Ex-Officio Provincial Sheriff

by:

(signed)

EDDIE M. ROSERO

Sheriff IV 11

Petitioner thereafter filed a motion for an alias writ of execution. This was granted by the RTC: 12

ALIAS WRIT OF EXECUTION

T O : The Sheriff or any person authorized

to serve process, RTC, Br. 32, Pili, C.s.

THRU : THE CLERK OF COURT VI and EX-OFFICIO

PROVINCIAL SHERIFF

Regional Trial Court

Pili, Camarines Sur

GREETINGS:

WHEREAS, on January 20, 1992, a decision was rendered by this Court, the dispositive portion of
which reads as follows:

"WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. declaring that Exh. "A" is a true pacto de retro sale;

2. declaring that the defendant can still redeem the property within 30 days from the finality of this
judgment, subject to the provisions of Art. 1616 of the New Civil Code.

3. No costs."

WHEREAS, in an order of this Court dated June 16, 1992, the notice of appeal filed by counsel for
the defendant has been granted and the Clerk of Court V of this Court transmitted the entire records
of the case to the Court of Appeals, Manila;

WHEREAS, on June 29, 1995, a decision was rendered by the Court of Appeals, Manila, the
dispositive portion of which reads as follows:

"THE FOREGOING CONSIDERED, the contested decision is hereby set aside; and declaring the
1970 sale with right of repurchase, "Exh. "A" as one of an equitable mortgage."

WHEREAS, on March 5, 1997, the Hon. Nilo A. Malanyaon, Presiding Judge of this Court issued an
order granting the issuance of a writ of execution, hereunder quoted as follows:

"It appearing that the decision of the Court of Appeals had become final and executory, and an entry
of final judgment had already been issued by the Honorable Court of Appeals, let a writ of execution
issue."

WHEREAS, on July 10, 1997, Sheriff Eddie M. Rosero submitted his return:

"WHEREFORE, the original copy of the Writ of execution is hereby returned unserved."

WHEREAS, on July 18, 1997, the Hon. Nilo A. Malanyaon issued an Order:

"The motion for issuance of alias writ of execution filed by counsel for the defendant, Atty. Lucille Fe
R. Maggay-Principe, is hereby granted.

Consequently, the Clerk of Court of this Court is directed to issue alias writ of execution."

WHEREFORE, you the Provincial Sheriff of Camarines Sur or his lawful deputy is hereby
commanded to effect the satisfaction of the above-quoted decision of the Honorable Court of
Appeals, Manila. Return this writ to this Court within sixty (60) days from your receipt hereof.

WITNESS THE HON. NILO A. MALANYAON, Judge of this Court, this 21st day of July, 1997, at
Cadlan, Pili, Camarines Sur.
(Sgd.) LALAINE P. MONSERATE

Officer-In-Charge

Legal Researcher II

The Sheriff was unable to effect the satisfaction of the alias writ as stated in the sheriff’s report,
which is worded thus:

This is to report on the status of the implementation of the Alias Writ of Execution issued in the
above-entitled case, to wit:

That on August 6, 1997 the plaintiff[s] represented by Sps. Policarpio Paulite and Hipolita Ocampo
and Eusebio M. Ocampo personally received copy of the Alias Writ of Execution but they refused to
sign on the original copy of the said writ, together with the letter of advise informing them to withdraw
at any time the amount deposited to the Office of the Clerk of Court VI, RTC, Pili, Camarines Sur by
defendant Luisa Briones so that the mortgage may now be deemed released or cancelled.

That until this time the said plaintiff[s] failed and or did not bother to withdraw the said amount
deposited by defendant Luisa Briones despite letter of advice and the alias writ of execution having
been personally received by them.

Cadlan, Pili, Camarines Sur – September 9, 1997.

For the Clerk of Court and

Ex-Officio Sheriff

by:

(signed)

EDDIE M. ROSERO

Sheriff IV 13

Unable to effect the execution of the Court of Appeals decision, petitioner filed with the RTC an
omnibus motion, dated May 25, 1999, praying:

WHEREFORE, it is respectfully prayed that an order issue:

a) Declaring the equitable mortgage, Exhibit "A", discharged;

b) Directing the issuance of a Writ of Possession against the plaintiffs for the delivery of possession
of the land in question to the defendant. 14

The RTC denied the omnibus motion in an Order dated November 16, 1999, which states:

Acting on the omnibus motion of plaintiff dated 25 May 1999 and the opposition thereto of defendant,
and considering that the decision of the Court of Appeals referring the decision of this Court has
become final and executory, hence, this Court can no longer alter, modify or add anything thereto,
the prayers set forth in the omnibus motion is, as it is, hereby denied.

SO ORDERED. 15

Petitioner filed a motion for reconsideration of the above Order, which was denied by the RTC in an
16 

Order dated February 23, 2000. 17

Petitioner then filed a motion for clarificatory judgment, dated April 5, 2000, with the Court of
Appeals. The motion was denied in a Resolution, dated June 9, 2000, which reads as follows:
18 

The only issues that reached Us, through an appeal, was whether the 1970 Sale with Right of
Repurchase was actually an equitable mortgage. We ruled, it was, necessarily there is nothing to
clarify.

If it is a matter however whether the prevailing party should be entitled to a right to repossess the
property, then the remedy is not with Us, but with the Court below.

For lack of merit, the Motion for Clarificatory Judgment is hereby DENIED.

SO ORDERED. 19

Petitioner filed a motion for reconsideration of the above Resolution. The Court of Appeals denied
the same in a Resolution dated August 3, 2000. 20

Petitioner now comes to this Court raising the following issues:

PETITIONER SUBMITS THAT THE PUBLIC RESPONDENT ACTED ARBITRARILY, WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN ISSUING THE
FOLLOWING RESOLUTIONS:

A) RESOLUTION DATED JUNE 9, 2000, DENYING PETITIONER’S MOTION FOR

CLARIFICATORY JUDGMENT.

B) RESOLUTION DATED AUGUST 3, 2000, DENYING PETITIONER’S MOTION FOR

RECONSIDERATION. 21

The sole issue is whether or not the Court of Appeals acted with grave abuse of discretion
amounting to lack of jurisdiction in refusing to grant petitioner’s motion for clarificatory judgment.

It must be noted, as narrated above, that the Decision of the Court of Appeals had already become
final and executory at the time that the motion for clarificatory judgment was filed. With regards to
final judgments, this Court has pronounced that:

… nothing is more settled in the law than that when a final judgment becomes executory, it thereby
becomes immutable and unalterable. The judgment may no longer be modified in any respect, even
if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law,
and regardless of whether the modification is attempted to be made by the Court rendering it or by
the highest Court of the land. The only recognized exceptions are the correction of clerical errors or
the making of so-called nunc pro tunc entries which cause no prejudice to any party, and, of course,
where the judgment is void. 22
As a general rule, therefore, final and executory judgments are immutable and unalterable except
under the three exceptions named above: a) clerical errors; b) nunc pro tunc entries which cause no
prejudice to any party; and c) void judgments.

In the present case, petitioner claims the second exception, i.e., that her motion for clarificatory
judgment is for the purpose of obtaining a nunc pro tunc amendment of the final and executory
Decision of the Court of Appeals.

Nunc pro tunc judgments have been defined and characterized by this Court in the following
manner:

The office of a judgment nunc pro tunc is to record some act of the court done at a former time which
was not then carried into the record, and the power of a court to make such entries is restricted to
placing upon the record evidence of judicial action which has been actually taken. It may be used to
make the record speak the truth, but not to make it speak what it did not speak but ought to
have spoken. If the court has not rendered a judgment that it might or should have rendered,
or if it has rendered an imperfect or improper judgment, it has no power to remedy these
errors or omissions by ordering the entry nunc pro tunc of a proper judgment. Hence a court
in entering a judgment nunc pro tunc has no power to construe what the judgment means,
but only to enter of record such judgment as had been formerly rendered, but which had not
been entered of record as rendered. In all cases the exercise of the power to enter
judgments nunc pro tunc presupposes the actual rendition of a judgment, and a mere right to a
judgment will not furnish the basis for such an entry. (15 R. C. L., pp. 622-623.)

The object of a judgment nunc pro tunc is not the rendering of a new judgment and the
ascertainment and determination of new rights, but is one placing in proper form on the
record, the judgment that had been previously rendered, to make it speak the truth, so as to
make it show what the judicial action really was, not to correct judicial errors, such as to
render a judgment which the court ought to have rendered, in place of the one it did
erroneously render, nor to supply nonaction by the court, however erroneous the judgment
may have been. (Wilmerding vs. Corbin Banking Co., 28 South., 640, 641; 126 Ala., 268.)

A nunc pro tunc entry in practice is an entry made now of something which was actually previously
done, to have effect as of the former date. Its office is not to supply omitted action by the court,
but to supply an omission in the record of action really had, but omitted through
inadvertence or mistake. (Perkins vs. Haywood, 31 N. E., 670, 672.)

It is competent for the court to make an entry nunc pro tunc after the term at which the transaction
occurred, even though the rights of third persons may be affected. But entries nunc pro tunc will not
be ordered except where this can be done without injustice to either party, and as a nunc pro
tunc order is to supply on the record something which has actually occurred, it cannot
supply omitted action by the court . . . (15 C. J., pp. 972-973.) 23

From the above characterization of a nunc pro tunc judgment it is clear that the judgment petitioner
sought through the motion for clarificatory judgment is outside its scope. Petitioners did not allege
that the Court of Appeals actually took judicial action and that such action was not included in the
Court of Appeals’ Decision by inadvertence. A nunc pro tunc judgment cannot correct judicial error
nor supply nonaction by the court. 24
Since the judgment sought through the motion for clarificatory judgment is not a nunc pro tunc one,
the general rule regarding final and executory decisions applies. In this case, no motion for
reconsideration having been filed after the Court of Appeals rendered its decision on June 29, 1995
and an entry of judgment having been made on July 17, 1996, the same became final and executory
and, hence, is no longer susceptible to amendment. It, therefore, follows that the Court of Appeals
did not act arbitrarily nor with grave abuse of discretion amounting to lack of jurisdiction when it
issued the aforementioned Resolution denying petitioner’s motion for clarificatory judgment and the
Resolution denying petitioner’s motion for reconsideration.

Nevertheless, for purposes of guiding the parties in the execution of the aforesaid Decision of the
CA, without altering the same, the following should be noted:

The Court of Appeals pronounced in its Decision that the contract between the parties is an
equitable mortgage. Since the contract is characterized as a mortgage, the provisions of the Civil
Code governing mortgages apply. Article 2088 of the Civil Code states:

The creditor cannot appropriate the things given by way of pledge or mortgage, or dispose of them.
Any stipulation to the contrary is null and void.

This Court has interpreted this provision in the following manner:

The essence of pacto commissorio, which is prohibited by Article 2088 of the Civil Code, is that
ownership of the security will pass to the creditor by the mere default of the debtor (Guerrero v.
Yñigo, et al., 96 Phil. 37, 41-42; Puig v. Sellner, et al., 45 Phil. 286, 287 – 88) …
25

… The only right of a mortgagee in case of non-payment of a debt secured by mortgage would be to
foreclose the mortgage and have the encumbered property sold to satisfy the outstanding
indebtedness. The mortgagor’s default does not operate to vest in the mortgagee the ownership of
the encumbered property, for any such effect is against public policy, as enunciated by the Civil
Code … 26

Applying the principle of pactum commissorium specifically to equitable mortgages, in Montevergin

v. CA, the Court enunciated that the consolidation of ownership in the person of the mortgagee in
27 

equity, merely upon failure of the mortgagor in equity to pay the obligation, would amount to
a pactum commissorium. The Court further articulated that an action for consolidation of ownership
is an inappropriate remedy on the part of the mortgagee in equity. The only proper remedy is to
cause the foreclosure of the mortgage in equity. And if the mortgagee in equity desires to obtain title
to the mortgaged property, the mortgagee in equity may buy it at the foreclosure sale.

The private respondents do not appear to have caused the foreclosure of the mortgage much less
have they purchased the property at a foreclosure sale. Petitioner, therefore, retains ownership of
the subject property. The right of ownership necessarily includes the right to possess, particularly
where, as in this case, there appears to have been no availment of the remedy of foreclosure of the
mortgage on the ground of default or non-payment of the obligation in question.

WHEREFORE, the petition for certiorari is DISMISSED. The parties are directed to proceed upon
the basis of the final Decision of the Court of Appeals, dated June 29, 1995, in CA-G.R. CV No.
39025, that the contract in question was an equitable mortgage and not a sale.

No costs.
SO ORDERED.