G.R. No. 117925 - TENSOREX INDUSTRIAL CORPORATION VS. COURT

Ruling

Accordingly, the MTC issued an alias writ of execution against said bond. Private respondent then appealed the judgment of the MTC in the ejectment case to the Regional Trial Court of Makati. In the meantime, even before said appeal could be raffled, the Branch Sheriff of MTC-Makati served the alias writ of execution and levied upon the personal properties of the private respondent, threatening to sell said properties. Confronted with this dilemma, private respondent filed a petition for certiorari with prayer for the issuance of writ of preliminary injunction with the RTC of Makati, docketed as Civil Case No. 91-2148, to enjoin the sheriff from carrying out the threatened sale of its properties. The RTC, after preliminary hearing, issued a writ of preliminary injunction conditioned upon the posting of an injunction bond in the amount of P200,000.00. After hearing, the RTC, in a Decision dated January 21, 1993, dismissed the petition for certiorari and lifted the writ of preliminary injunction it earlier issued. From this dismissal, private respondent filed its notice of intention to appeal Civil Case No. 91-2148 to the Court of Appeals. Petitioner moved to expunge said notice of intention to appeal, and to declare said RTC decision final on the ground that the appeal to the Court of Appeals was not the proper remedy but a petition for review in accordance with Supreme Court Circular No. 2-92. The RTC, in its Order dated May 24, 1993, granted the motion to expunge and declared its decision final. [1] On Motion for Reconsideration by the private respondent, however, the RTC, in an Order dated June 21, 1993, reconsidered its previous order and gave due course to the appeal to the CA, ruling that this case is not an appeal to this [trial court] in the exercise of its appellate jurisdiction. [2] It was, as already adverted to, a petition for certiorari. On April 20, 1994, the Court of Appeals dismissed private respondents appeal for its failure to file Memorandum, [3] and copy of said order of dismissal was received by private respondents counsel on May 5, 1994. On May 10, 1994, private respondent filed a Motion for Reconsideration premised on the ground that it did not receive any notice to file memorandum and as such its period within which to file the required memorandum had not yet lapsed. On May 26, 1994, the Court of Appeals denied the Motion for Reconsideration, [4] copy of said order was received by private respondent on June 13, 1994. In the meantime, even before private respondent could receive said order of denial of the motion for reconsideration, it filed a Supplemental Motion for Reconsideration with prayer that its Comment filed on January 7, 1994, be considered as its Memorandum. On June 22, 1994, herein private respondent filed a Motion for Leave to File Second Motion for Reconsideration, the resolution of which along with other pending incidents of the case was deferred by the Court of Appeals. On August 30, 1994, the Court of A