G.R. No. 171687 - JETRI CONSTRUCTION CORPORATION/ ANASTACIA CORPUZ RIGOR, PRESIDENT, VS. BANK OF THE PHILIPPINE ISLANDS.D E C I S I O N - Supreme Court E-Library

Ruling

WHEREFORE , let the corresponding writ of possession be issued directing the Sheriff of this Branch to place the herein petitioner bank in actual physical possession of the foreclosed property situated in the district of Sampaloc, City of Manila, and covered by Transfer Certificate of Title No. 213950, now Transfer Certificate of Title No. 250654, and to eject therefrom mortgagor JETRI Construction Corporation, its agents and such other persons claiming rights under it. [4] Aggrieved by the aforequoted Order, petitioner instituted an appeal before the Court of Appeals which was dismissed by the appellate court in a Resolution dated 17 November 2005, which reads: For failure of the appellant to file its appellant's brief within the reglementary period despite notice, the appeal is declared ABANDONED and hereby DISMISSED, pursuant to Section 1 (e), Rule 50 of the 1997 Rules of Civil Procedure. [5] Petitioner subsequently filed a Motion for Reconsideration assailing the dismissal of its appeal before the appellate court. In Petitioner's Motion for Reconsideration, it was averred that counsel for petitioner did not receive any notice to file its brief from the Court of Appeals as well as a copy of the letter of transmittal of the record from the clerk of the lower court to the Court of Appeals. Petitioner, thus, argued that this non-compliance by the clerk of the lower court in violation of Section 10 of Rule 41 of the Rules of Court caused the unwarranted confusion which actually deprived the petitioner of the means to know when the reglementary period to file its brief had commenced. In a Resolution dated 1 March 2006, the Court of Appeals denied the Motion for Reconsideration in this wise: Finding no merit on oppositor-appellant's MOTION FOR RECONSIDERATION , dated December 5, 2005, considering that the Notice to File Brief, dated July 21, 2005, was sent to and received by the oppositor-appellant, through counsel, on August 1, 2005, as shown by the attached Registry Return Receipt (Back of p. 6, Rollo), and taking into consideration the Comment filed thereto by counsel for petitioner-appellee, We hereby DENY the motion . [6] Hence, the instant petition. Petitioner contends that the dismissal of its appeal by the Court of Appeals amounts to a denial of due process. Petitioner now explains in its petition before this Court that it's counsel failed to receive the Notice to file appellant's brief by "honest mistake" or "unforeseen accident" as the same was received and allegedly misplaced by one Angeline Diguinat, who was just a visiting relative of petitioner's counsel seeking financial assistance for the victims of the calamities in the province of Aurora. Moreover, petitioner contends that the Court of Appeals, in the interest of justice, equity and fair play, could have simply directed petitioner's counsel to show cause why he should not be cited for contempt for failure to comply with the order to file appellant's brief. Rule 44, Section 7 [7] of