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WHEREFORE, the petition is DENIED and the
appealed Decision AFFIRMED.
SO ORDERED.

Ynares-Santiago (Chairperson), Austria-Martinez,

Chico-Nazario and Nachura, JJ., concur.

Petition denied, judgment affirmed.

Note.—The suability of a government official depends

on whether the official concerned was acting within his
official or jurisdictional capacity, and whether the acts
done in the performance of official functions will result in a
charge or financial liability against the government.
(Department of Health vs. Pharmawealth, Inc., 518 SCRA
240 [2007])
——o0o——

G.R. No. 165060. November 27, 2008.*

ALBINO JOSEF, petitioner, vs. OTELIO SANTOS,

respondent.

Judgments; Where a judgment or judicial order is void it may

be said to be a lawless thing, which can be treated as an outlaw
and slain at sight, or ignored wherever and whenever it exhibits its
head.—The above Order did not resolve nor take into account
petitioner’s allegations in his Opposition, which are material and
relevant in the resolution of the motion for issuance of a writ of
execution. This is serious error on the part of the trial court. It
should have made an earnest determination of the truth to
petitioner’s claim that the house and lot in which he and his
children resided was their duly constituted family home. Since it
did not, its July 16, 2003 Order is thus null and void. Where a
judgment or judicial order is void it may be said to be a lawless
thing, which can be treated as

_______________

* THIRD DIVISION.

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an outlaw and slain at sight, or ignored wherever and whenever it

exhibits its head.
Family Law; Family Home; The family home is a real right
which is gratuitous, inalienable and free from attachment,
constituted over the dwelling place and the land on which it is
situated, which confers upon a particular family the right to enjoy
such properties, which must remain with the person constituting it
and his heirs.—The family home is a real right which is
gratuitous, inalienable and free from attachment, constituted over
the dwelling place and the land on which it is situated, which
confers upon a particular family the right to enjoy such
properties, which must remain with the person constituting it and
his heirs. It cannot be seized by creditors except in certain special
cases.
Same; Same; The protection of the family home is just as
necessary in the preservation of the family as a basic social
institution, and since no custom, practice or agreement destructive
of the family shall be recognized or given effect, the trial court’s
failure to observe the proper procedures to determine the veracity of
petitioner’s allegations, is unjustified.—The family home is the
dwelling place of a person and his family, a sacred symbol of
family love and repository of cherished memories that last during
one’s lifetime. It is the sanctuary of that union which the law
declares and protects as a sacred institution; and likewise a
shelter for the fruits of that union. It is where both can seek
refuge and strengthen the tie that binds them together and which
ultimately forms the moral fabric of our nation. The protection of
the family home is just as necessary in the preservation of the
family as a basic social institution, and since no custom, practice
or agreement destructive of the family shall be recognized or
given effect, the trial court’s failure to observe the proper
procedures to determine the veracity of petitioner’s allegations, is
unjustified. The same is true with respect to personal properties
levied upon and sold at auction. Despite petitioner’s allegations in
his Opposition, the trial court did not make an effort to determine
the nature of the same, whether the items were exempt from
execution or not, or whether they belonged to petitioner or to
someone else.

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PETITION for review on certiorari of the resolutions of the

Court of Appeals.
   The facts are stated in the opinion of the Court.

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Josef vs. Santos

  Manuel R. Bustamante for petitioner.

  Ciriaco A. Macapagal for respondent.

YNARES-SANTIAGO, J.:
This petition for review on certiorari under Rule 45 of
the Rules of Court assails the November 17, 20031
Resolution of the Court of Appeals in CA-G.R. SP No.
80315, dismissing petitioner’s special civil action of
certiorari for failure to file a prior motion for
reconsideration, and the May 7, 20042 Resolution denying
the motion for reconsideration.
Petitioner Albino Josef was the defendant in Civil Case
No. 95-110-MK, which is a case for collection of sum of
money filed by herein respondent Otelio Santos, who
claimed that petitioner failed to pay the shoe materials
which he bought on credit from respondent on various
dates in 1994.
After trial, the Regional Trial Court of Marikina City,
Branch 272, found petitioner liable to respondent in the
amount of P404,836.50 with interest at 12% per annum
reckoned from January 9, 1995 until full payment.3
Petitioner appealed4 to the Court of Appeals, which
affirmed the trial court’s decision in toto.5 Petitioner filed
before this Court a petition for review on certiorari, but it
was dismissed in a Resolution dated February 18, 2002.6
The Judgment became final and executory on May 21,
2002.

_______________

1  Rollo, p. 64; penned by Associate Justice Edgardo P. Cruz and

concurred in by Associate Justices Ruben T. Reyes and Noel G. Tijam.
2 Id., at pp. 72-73.
3 Id., at pp. 29-33; penned by Judge Reuben R. De la Cruz.
4 Docketed as CA-G.R. CV No. 56952.
5 Rollo, pp. 34-38; penned by Associate Justice Rodrigo V. Cosico and
concurred in by Associate Justices Ramon A. Barcelona and Alicia L.
Santos.
6 Id., at pp. 13, 51; docketed as G.R. No. 150720.

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On February 17, 2003, respondent moved for issuance of

a writ of execution,7 which was opposed by petitioner.8 In
an Order dated July 16, 2003,9 the trial court granted the
motion, the dispositive portion of which reads, as follows:

“WHEREFORE, premises considered, the motion for issuance

of writ of execution is hereby granted. Let a writ of execution be
issued commanding the Sheriff of this Court to execute the
decision dated December 18, 1996.
SO ORDERED.”10

A writ of execution was issued on August 20, 200311 and

enforced on August 21, 2003. On August 29, 2003, certain
personal properties subject of the writ of execution were
auctioned off. Thereafter, a real property located at
Marikina City and covered by Transfer Certificate of Title
(TCT) No. N-105280 was sold on October 28, 2003 by way
of public auction to fully satisfy the judgment credit.
Respondent emerged as the winning bidder and a
Certificate of Sale12 dated November 6, 2003 was issued in
his favor.
On November 5, 2003, petitioner filed an original
petition for certiorari with the Court of Appeals,
questioning the sheriff’s levy and sale of the
abovementioned personal and real properties. Petitioner
claimed that the personal properties did not belong to him
but to his children; and that the real property covered by
TCT No. N-105280 was his family home thus exempt from
execution.
On November 17, 2003, the Court of Appeals issued the
assailed Resolution dismissing the petition for failure of
petitioner to file a motion for reconsideration of the trial
court’s

_______________

7  Id., at pp. 50-52.

8  Id., at pp. 53-55.
9  Id., at p. 56.
10 Id.
11 Id., at pp. 57-58.
12 Id., at pp. 61-62.

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July 16, 2003 Order granting the motion for execution and
ordering the issuance of a writ therefor, as well as for his
failure to indicate in his petition the timeliness of its filing
as required under the Rules of Court. On May 7, 2004, the
appellate court denied petitioner’s motion for
reconsideration.
Thus, the instant petition which raises the following
issues:

I.
WHETHER OR NOT THE LEVY AND SALE OF THE
PERSONAL BELONGINGS OF THE PETITIONER’S
CHILDREN AS WELL AS THE ATTACHMENT AND SALE ON
PUBLIC AUCTION OF HIS FAMILY HOME TO SATISFY THE
JUDGMENT AWARD IN FAVOR OF RESPONDENT IS LEGAL.
II.
WHETHER OR NOT THE DISMISSAL OF THE PETITIONER’S
PETITION FOR CERTIORARI BY THE HONORABLE COURT
OF APPEALS IS JUSTIFIED UNDER THE CIRCUMSTANCES.

Petitioner argues that the trial court sheriff erroneously

attached, levied and sold on execution the real property
covered by TCT No. N-105280 because the same is his
family home; that the execution sale was irregular because
it was conducted without complying with the notice and
posting of requirements; and that the personal and real
properties were sold for inadequate prices as to shock the
conscience. The real property was allegedly worth P8
million but was sold for only P848,448.64.
Petitioner also argues that the appellate court gravely
abused its discretion in dismissing the petition based
purely on technical grounds, i.e., his failure to file a motion
for reconsideration of the trial court’s order granting
execution, and his failure to indicate in his petition for
certiorari the timeliness of filing the same with the Court of
Appeals.
Respondent, on the other hand, argues that petitioner’s
alleged family home has not been shown to have been
judicially or extrajudicially constituted, obviously referring
to the provi-
62

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sions on family home of the Civil Code—not those of the

Family Code which should apply in this case; that
petitioner has not shown to the court’s satisfaction that the
personal properties executed upon and sold belonged to his
children. Respondent argues that he is entitled to
satisfaction of judgment considering the length of time it
took for the parties to litigate and the various remedies
petitioner availed of which have delayed the case.
The petition is meritorious.
Petitioner, in his opposition to respondent’s motion for
issuance of a writ of execution, claimed that he was
insolvent; that he had no property to answer for the
judgment credit; that the house and lot in which he was
residing at the time was his family home thus exempt from
execution; that the household furniture and appliances
found therein are likewise exempt from execution; and that
these furniture and appliances belonged to his children
Jasmin Josef and Jean Josef Isidro. Thus, as early as
during proceedings prior to the issuance of the writ of
execution, petitioner brought to the fore the issue of
exemption from execution of his home, which he claimed to
be a family home in contemplation of the civil law.
However, instead of inquiring into the nature of
petitioner’s allegations in his opposition, the trial court
ignored the same and granted respondent’s motion for
execution. The full text of the July 16, 2003 Order provides,
as follows:

“This resolves the “Motion for the Issuance of Writ of

Execution” filed by plaintiff thru counsel and the “Opposition”
thereto filed by the defendant on her own behalf.
The records show that a decision was rendered by this Court in
favor of the plaintiff on December 18, 1995 which decision was
affirmed by the Court of Appeals on June 26, 2001 and by the
Supreme Court on February 18, 2002. On June 18, 2003, this
Court received the entire records of the case from the Court of
Appeals.

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Considering the foregoing, it is now the ministerial duty of the

Court to issue a writ of execution pursuant to Sec. 1, Rule 39 of

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the Rules of Court.

WHEREFORE, premises considered, the motion for issuance of
writ of execution is hereby granted. Let a writ of execution be
issued commanding the Sheriff of this Court to execute the
decision dated December 18, 1996.
SO ORDERED.”13

The above Order did not resolve nor take into account
petitioner’s allegations in his Opposition, which are
material and relevant in the resolution of the motion for
issuance of a writ of execution. This is serious error on the
part of the trial court. It should have made an earnest
determination of the truth to petitioner’s claim that the
house and lot in which he and his children resided was
their duly constituted family home. Since it did not, its July
16, 2003 Order is thus null and void. Where a judgment or
judicial order is void it may be said to be a lawless thing,
which can be treated as an outlaw and slain at sight, or
ignored wherever and whenever it exhibits its head.14
The family home is a real right which is gratuitous,
inalienable and free from attachment, constituted over the
dwelling place and the land on which it is situated, which
confers upon a particular family the right to enjoy such
properties, which must remain with the person constituting
it and his heirs. It cannot be seized by creditors except in
certain special cases.15
Upon being apprised that the property subject of
execution allegedly constitutes petitioner’s family home,
the trial court should have observed the following
procedure:

_______________

13 Id., at p. 56.
14 Abbain v. Chua, No. L-24241, February 26, 1968, 22 SCRA 748.
15 Taneo, Jr. v. Court of Appeals, G.R. No. 108532, March 9, 1999, 304
SCRA 308.

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64 SUPREME COURT REPORTS ANNOTATED

Josef vs. Santos

“1. Determine if petitioner’s obligation to respondent falls

under either of the exceptions under Article 15516 of the Family
Code;
2. Make an inquiry into the veracity of petitioner’s claim that
the property was his family home;17 conduct an ocular inspection

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of the premises; an examination of the title; an interview of

members of the community where the alleged family home is
located, in order to determine if petitioner actually resided within
the premises of the claimed family home; order a submission of
photographs of the premises, depositions, and/or affidavits of
proper individuals/parties; or a solemn examination of the
petitioner, his children and other wit-

_______________

16 Family Code.
Art. 155. The family home shall be exempt from execution, forced sale
or attachment except:
(1) For non-payment of taxes;
(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by mortgages on the premises before or after
such constitution; and
(4) For debts due to laborers, mechanics, architects, builders,
materialmen and others who have rendered service or furnished material
for the construction of the building.
17 Family Code.
Art. 152. The family home, constituted jointly by the husband and
the wife or by an unmarried head of a family, is the dwelling house where
they and their family reside, and the land on which it is situated.
Art. 153. The family home is deemed constituted on a house and lot
from the time it is occupied as a family residence. From the time of its
constitution and so long as any of its beneficiaries actually resides therein,
the family home continues to be such and is exempt from execution, forced
sale or attachment except as hereinafter provided and to the extent of the
value allowed by law.
Art. 162. The provisions in this Chapter shall also govern existing
family residences insofar as said provisions are applicable.

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Josef vs. Santos

nesses. At the same time, the respondent is given the opportunity

to cross-examine and present evidence to the contrary;
3. If the property is accordingly found to constitute
petitioner’s family home, the court should determine:
a) if the obligation sued upon was contracted or
incurred prior to, or after, the effectivity of the Family
Code;18
b) if petitioner’s spouse is still alive, as well as if there
are other beneficiaries of the family home;19
c) if the petitioner has more than one residence for the
purpose of determining which of them, if any, is his family
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home;20 and
d) its actual location and value, for the purpose
of applying the provisions of Articles 15721 and

_______________

18 Modequillo v. Breva, G.R. No. 86355, May 31, 1990, 185 SCRA 766; Manacop
v. Court of Appeals, 342 Phil. 735; 277 SCRA 57 (1997); Taneo v. Court of Appeals,
supra note 15.
19 Family Code.
Art. 154. The beneficiaries of a family home are:
(1) The husband and wife, or an unmarried person who is the head of a
family; and
(2) Their parents, ascendants, descendants, brothers and sisters,
whether the relationship be legitimate or illegitimate, who are living in the
family home and who depend upon the head of the family for legal support.
Art. 159. The family home shall continue despite the death of one or
both spouses or of the unmarried head of the family for a period of ten
years or for as long as there is a minor beneficiary, and the heirs cannot
partition the same unless the court finds compelling reasons therefor. This
rule shall apply regardless of whoever owns the property or constituted the
family home.
20 Family Code.
Art. 161. For purposes of availing of the benefits of a family home as
provided for in this Chapter, a person may constitute, or be the beneficiary
of, only one family home.
21 Family Code.

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66 SUPREME COURT REPORTS ANNOTATED

Josef vs. Santos

16022 of the Family Code.

The family home is the dwelling place of a person and

his family, a sacred symbol of family love and repository of
cher-

_______________

Art. 157. The actual value of the family home shall not
exceed, at the time of its constitution, the amount of Three hundred
thousand pesos in urban areas, and Two hundred thousand pesos
in rural areas, or such amounts as may hereafter be fixed by law.
In any event, if the value of the currency changes after the
adoption of this Code, the value most favorable for the constitution
of a family home shall be the basis of evaluation.

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For purposes of this Article, urban areas are deemed to include

chartered cities and municipalities whose annual income at least
equals that legally required for chartered cities. All others are
deemed to be rural areas.
22 Family Code.
Art. 160. When a creditor whose claim is not among those
mentioned in Article 155 obtains a judgment in his favor, and he
has reasonable grounds to believe that the family home is actually
worth more than the maximum amount fixed in Article 157, he may
apply to the court which rendered the judgment for an order
directing the sale of the property under execution. The court shall
so order if it finds that the actual value of the family home exceeds
the maximum amount allowed by law as of the time of its
constitution. If the increased actual value exceeds the maximum
allowed in Article 157 and results from subsequent voluntary
improvements introduced by the person or persons constituting the
family home, by the owner or owners of the property, or by any of
the beneficiaries, the same rule and procedure shall apply.
At the execution sale, no bid below the value allowed for a family
home shall be considered. The proceeds shall be applied first to the
amount mentioned in Article 157, and then to the liabilities under
the judgment and the costs. The excess, if any, shall be delivered to
the judgment debtor.

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Josef vs. Santos

ished memories that last during one’s lifetime.23 It is the

sanctuary of that union which the law declares and
protects as a sacred institution; and likewise a shelter for
the fruits of that union. It is where both can seek refuge
and strengthen the tie that binds them together and which
ultimately forms the moral fabric of our nation. The
protection of the family home is just as necessary in the
preservation of the family as a basic social institution, and
since no custom, practice or agreement destructive of the
family shall be recognized or given effect,24 the trial court’s
failure to observe the proper procedures to determine the
veracity of petitioner’s allegations, is unjustified.
The same is true with respect to personal properties
levied upon and sold at auction. Despite petitioner’s
allegations in his Opposition, the trial court did not make
an effort to determine the nature of the same, whether the
items were exempt from execution or not, or whether they
belonged to petitioner or to someone else.25

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_______________

23  A. Tolentino, Commentaries and Jurisprudence on the Civil Code

of the Philippines, Vol. I (1990 ed.), p. 508, citing Code Commission of
1947, pp. 18-19, 20.
24 Family Code, Art. 149.
25 Sec. 13, Rule 39 of the Rules of Court provide:
Sec. 13. Property exempt from execution.—Except as otherwise
expressly provided by law, the following property, and no other, shall be
exempt from execution:
(a) The judgment obligor’s family home as provided by law, or
the homestead in which he resides, and land necessarily used in
connection therewith;
(b) Ordinary tools and implements personally used by him in
his trade, employment, or livelihood;
(c) Three horses, or three cows, or three carabaos, or other
beasts of burden such as the judgment obligor may select
necessarily used by him in his ordinary occupation;
(d) His necessary clothing and articles for ordinary personal
use, excluding jewelry;

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Josef vs. Santos

Respondent moved for issuance of a writ of execution on

February 17, 2003 while petitioner filed his opposition on
June 23, 2003. The trial court granted the motion on July
16, 2003, and the writ of execution was issued on August
20, 2003. Clearly, the trial court had enough time to
conduct the crucial inquiry that would have spared
petitioner the trouble of having to seek relief all the way to
this Court. Indeed, the trial court’s inaction on petitioner’s
plea resulted in serious injustice to the latter, not to
mention that its failure to conduct an inquiry based on the
latter’s claim bordered on gross ignorance of the law.

_______________

(e) Household furniture and utensils necessary for

housekeeping, and used for that purpose by the judgment obligor
and his family, such as the judgment obligor may select, of a value
not exceeding one hundred thousand pesos;
(f) Provisions for individual or family use sufficient for four
months;
(g) The professional libraries and equipment of judges, lawyers,
physicians, pharmacists, dentists, engineers, surveyors, clergymen,

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teachers, and other professionals, not exceeding three hundred

thousand pesos in value;
(h) One fishing boat and accessories not exceeding the total
value of one hundred thousand pesos owned by a fisherman and by
the lawful use of which he earns his livelihood;
(i) So much of the salaries, wages, or earnings of the judgment
obligor of his personal services within the four months preceding
the levy as are necessary for the support of his family;
(j) Lettered gravestones;
(k) Monies benefits, privileges, or annuities accruing or in any
manner growing out of any life insurance;
(l) The right to receive legal support, or money or property
obtained as such support, or any pension or gratuity from the
Government;
(m) Properties specially exempt by law.
But no article or species of property mentioned in this section shall be
exempt from execution issued upon a judgment recovered for its price or
upon a judgment of foreclosure of a mortgage thereon.

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Being void, the July 16, 2003 Order could not have
conferred any right to respondent. Any writ of execution
based on it is likewise void. Although we have held in
several cases26 that a claim for exemption from execution of
the family home should be set up and proved before the
sale of the property at public auction, and failure to do so
would estop the party from later claiming the exemption
since the right of exemption is a personal privilege granted
to the judgment debtor which must be claimed by the
judgment debtor himself at the time of the levy or within a
reasonable period thereafter, the circumstances of the
instant case are different. Petitioner claimed exemption
from execution of his family home soon after respondent
filed the motion for issuance of a writ of execution, thus
giving notice to the trial court and respondent that a
property exempt from execution may be in danger of being
subjected to levy and sale. Thereupon, the trial court is
called to observe the procedure as herein laid out; on the
other hand, the respondent should observe the procedure
prescribed in Article 160 of the Family Code, that is, to
obtain an order for the sale on execution of the petitioner’s
family home, if so, and apply the proceeds—less the
maximum amount allowed by law under Article 157 of the
Code which should remain with the petitioner for the
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rebuilding of his family home—to his judgment credit.

Instead, both the trial court and respondent completely
ignored petitioner’s argument that the properties subject of
the writ are exempt from execution.
Indeed, petitioner’s resort to the special civil action of
certiorari in the Court of Appeals was belated and without
benefit of the requisite motion for reconsideration,
however, considering the gravity of the issue, involving as
it does matters that strike at the very heart of that basic
social institution which the State has a constitutional and
moral duty to preserve and protect, as well as petitioner’s
constitutional right

_______________

26 Honrado v. Court of Appeals, G.R. No. 166333, November 25, 2005,

476 SCRA 280; Gomez v. Gealone, G.R. No. 58281, November 13, 1991,
203 SCRA 474.

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70 SUPREME COURT REPORTS ANNOTATED

Josef vs. Santos

to abode, all procedural infirmities occasioned upon this

case must take a back seat to the substantive questions
which deserve to be answered in full.
WHEREFORE, the Petition for Review on Certiorari is
GRANTED. The November 17, 2003 and May 7, 2004
Resolutions of the Court of Appeals in CA-G.R. SP No.
80315 are REVERSED and SET ASIDE. The July 16, 2003
Order of the Regional Trial Court of Marikina City, Branch
272 in Civil Case No. 95-110-MK, as well as the writ or
writs of execution thus issued in said case, are hereby
DECLARED VOID, and all acts proceeding therefrom and
any title obtained by virtue thereof are likewise
DECLARED VOID.
The trial court is hereby DIRECTED (1) to conduct a
solemn inquiry into the nature of the real property covered
by Transfer Certificate of Title No. N-105280, with a view
toward determining whether the same is petitioner Albino
Josef’s family home, and if so, apply the pertinent
provisions of the Family Code and Rule 39 of the Rules of
Court; and (2) to conduct an inquiry into the ownership of
all other properties that were levied upon and sold, with
the aim of determining as well whether these properties
are exempt from execution under existing law.

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Respondent Otelio Santos is hereby DIRECTED to hold

the abovementioned real and personal properties, or the
proceeds thereof, in trust to await the outcome of the trial
court’s inquiry.
Finally, the trial court is DIRECTED to resolve, with
utmost dispatch, Civil Case No. 95-110-MK within sixty
(60) days from receipt of a copy of this Decision.
SO ORDERED.

Austria-Martinez, Tinga,** Chico-Nazario and

Nachura, JJ., concur.

_______________

** In lieu of Associate Justice Teresita J. Leonardo-De Castro, per

Special Order No. 539 dated November 14, 2008.

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