THE REPUBLIC OF THE PHILIPPINES, THROUGH THE DEPARTMENT OF EDUCATION, CULTURE AND SPORTS, represented by its Division Superintendent Region 2, Tuguegarao, Cagayan, petitioner vs. COURT OF APPEALS, LUCAS TANGUILAN, JULIANA TANGUILAN, assisted by her husband, ROBERTO TANGUILAN, DOMINGO TANGUILAN, JUAN TANGUILAN, JOSE TANGUILAN, CATARINA TANGUILAN, PAULINO TANGUILAN, PEDRO TANGUILAN and INES TANGUILAN, respondents. ALEX

This is a petition for review on certiorari seeking the reversal and setting aside of the decision of the Court of Appeals dated January 28, 1998 in CA-G. R. SP No. 45579 entitled "The Republic of the Philippines through the Department of Education, Culture and Sports, etc. versus Hon. Rolando V. Salacup, et al."

The antecedent facts of the case are as follows: Jksm

A complaint for recovery of possession and ownership with damages was filed by plaintiffs Lucas Tanguilan, Juliana Tanguilan assisted by her husband Roberto Tanguilan, Domingo Tanguilan, Juan Tanguilan, Jose Tanguilan, Catarina Tanguilan, Paulino Tanguilan, Pedro Tanguilan, Digna Tanguilan, and Ines Tanguilan (herein private respondents) against the Department of Education, Culture and Sports, represented by its Division Superintendent of Schools of Cagayan, Region 2, Tuguegarao, Cagayan (DECS, for brevity).1 [Annex "B"; Rollo, p. 56]

The parcel of land in question is designated as Lot No. 7133 of the Cadastral Survey of Tuguegarao, Cagayan with an area of three thousand four hundred ninety-four (3494) square meters and covered by OCT No. 2145 issued in the name of the spouses Domingo Tanguilan and Modesta Addun.2 [Ibid., p. 57] Chief

On January 18, 1996, summons was served upon the defendant DECS (petitioner herein).3 [Annex "1"; Rollo, p. 189] Peregrino N. Alan, the Schools Division Superintendent, filed a motion for extension of time to file a responsive answer.4 [Annex "2"; Ibid., p. 191] In the order of the trial court on February 2, 1996 the motion was granted whereby the defendant was given until February 17, 1996 within which to file its answer.5 [Annex "3"; Ibid., p. 192]

On February 22, 1996, defendant DECS filed a manifestation and motion for new period to file answer to the complaint.6 [Annexes "C" and "7"; Ibid., pp. 61 and 196, respectively]

On February 23, 1996, the plaintiffs moved to declare defendant DECS in default for failure of the latter to file an answer within the period fixed by the court.7 [Annex "4"’ Ibid., p. 193] A hearing on the said motion was set on March 1, 1996.8 [Annex "5"; Ibid., p. 194]

On even date, in open court, an order was issued (1) finding that there is no more legal basis to grant the motion for extension to file an answer since the same was filed after the expiration of the original 15-day period, (2) declaring defendant in default, and (3) setting the reception of plaintiffs’ evidence that afternoon.9 [Annex "6"; Ibid., p. 195] Esm

The following motions were thereafter filed by the defendant: a motion for reconsideration,10 [Annexes "E" and "8"; Ibid., pp. 65 and 199, respectively] a motion to admit attached answer11 [Annexes "G" and "9"; Ibid., pp. 71 and 203, respectively] with the corresponding answer,12 [Ibid., p. 74; Annex "10"; Ibid., p. 206] and a rejoinder.13 [Annexes "H" and "13"; Ibid., pp. 78 and 214. Respectively] An opposition to the motion for reconsideration14 [Annexes "F" and "11"; Ibid., pp. 69 and 210, respectively] and an opposition to the motion to admit answer15 [Annex "12"; Ibid., p. 212] were filed by plaintiffs.

On September 10, 1996, a resolution was issued denying, for lack of merit, the motion for reconsideration.16 [Annexes "I" and "14"; Ibid., pp. 82 and 218, respectively]

On October 29, 1996, the trial court rendered its decision,17 [Annexes "J" and "15"; Ibid., pp. 85 and 221, respectively] the dispositive portion of which reads: Esmsc

A copy of the decision was received by defendant on November 5, 1996. Consequently on November 20, 1996, a motion for reconsideration19 [Annexes "K" and "16"; Ibid., pp. 91 and 227, respectively] was filed. An opposition thereto was filed by plaintiffs.20 [Annexes "L" and "17"; Ibid., pp. 98 and 234, respectively] The motion for reconsideration was denied for lack of merit in the resolution of March 14, 1997.21 [Annexes "M" and "18"; Ibid., pp. 101 and 237, respectively]

A motion for the issuance of a writ of execution was thereafter filed by the plaintiffs.22 [Annexes "O" and "19"; Ibid., pp. 105 and 240, respectively] An opposition to the said motion was filed by defendant DECS.23 [Annexes "P" and "21"; Ibid., pp. 107 and 243, respectively] Reply to the same was subsequently filed.24 [Annexes "R" and "23"; Ibid., pp. 114 and 250, respectively]

A notice of appeal dated March 31, 1997 was then filed by defendant.25 [Annexes "N" and "20"; Ibid., pp. 104 and 242, respectively] A motion to dismiss the notice of appeal was filed.26 [Annexes "Q" and "22"; Ibid., pp. 112 and 248, respectively] Comment (re: motion to dismiss the notice of appeal and reply to the opposition to the motion for the issuance of writ of execution)27 [Annexes "S" and "24"; Ibid., pp. 117 and 253, respectively] and rejoinder to the comment28 [Annex "25"; Ibid., p. 257] were filed. Esmso

On August 1, 1997, a resolution was issued by the trial court dismissing the notice of appeal for being filed out of time and ordering the issuance of a writ of execution for the enforcement of the decision dated October 29, 1996.29 [Annex "T"; Ibid., p. 121]

Subsequently a writ of execution was issued on August 21, 1997.30 [Annex "U"; Ibid., p. 125]

On October 9, 1997, an Order was issued authorizing the Sheriff to withdraw the amount garnished from the Land Bank of the Philippines to satisfy the obligation of the defendant and to immediately deliver the same to the plaintiffs.31 [Annexes "Y" and "30"; Ibid., pp. 135 and 259, respectively] Msesm

Accordingly a petition for certiorari and prohibition with urgent prayer for a temporary restraining order and/or preliminary injunction was filed with the Court of Appeals docketed as CA-G.R. SP No. 45579.32 [Annex "Z"; Ibid., p. 136]

After the requisite pleadings had been filed, the Court of Appeals issued its questioned decision dated January 28, 1998 dismissing the petition for lack of merit.33 [Annex "A"; Ibid., p. 51]

Hence this petition.

Petitioner assigns the following lone error:

The petition is without merit. Exsm

The right to appeal is not a constitutional, natural or inherent right. It is a statutory privilege of statutory origin and, therefore, available only if granted or provided by statute.34 [Aris (Phil.) Inc. vs. National Labor Relations Commission, 200 SCRA 246 [1991].] As such it may be exercised only in the manner and in accordance with the provision of law.35 [Philippine Commercial International Bank vs. Court of Appeals, 229 SCRA 560 [1994].]

Section 39 of Batas Pambansa Blg. 129 provides:

Petitioner admits the following in the Opposition to the Motion for the Issuance of a Writ of Execution it filed with the trial court: (1) that it should have filed its notice of appeal on March 26, 1997; (2) that the same was not filed until April 1, 1997 because from March 24-27, 1997, Ma. Zorayda V. Tejones-Zuniga, the Associate Solicitor handling the case was in General Santos City attending the hearing in Civil Case No. 5026 entitled "Board of Liquidators v. Munsayac, et al."; (3) that it was only around 4:00 o’clock in the afternoon of March 31, 1997 that she (Tejones-Zuniga) received the resolution denying the motion for reconsideration of the decision dated October 29, 1996; (4) that the notice of appeal was filed two (2) days late (excluding March 27, 28, 29 and 30, being holidays).36 [Annexes "P" and 21"; Rollo, pp. 108-109 and 244-245, respectively.]

It is well-settled that failure to perfect an appeal within the period provided for by law has the effect of rendering the decision or judgment final and executory.

Petitioner acknowledged that the appeal was filed two (2) days after the expiration of the period to appeal. This being the case the decision of the trial court dated October 29, 1996 became final and executory upon the expiration of the period to appeal. Slx

Perfection of an appeal within the statutory or reglementary period is not only mandatory but also jurisdictional and failure to do so renders the questioned decision final and executory, and deprives the appellate court or body of jurisdiction to alter the final judgment much less to entertain the appeal.37 [Pedrosa vs. Hill, 257 SCRA 373 [1996].] (Emphasis ours)

We can not and must not countenance the practice of asking that a final judgment or order be set aside or be reopened every time the counsel fails to personally receive a copy thereof because at the time it was delivered to her office she was absent therefrom. For to do so would mean that the end to litigations would be speculative, if not dependent upon the will of the parties and/or their lawyers.38 [Sumbillo vs. Intermediate Appellate Court, 165 SCRA 232, 238 [1988].] Not to mention that it would result in cases dragging and clogging the already congested dockets of the court. Mesm

Petitioner cites the ruling in Dimayacyac vs. Court of Appeals39 [93 SCRA 265 [1979].] to bolster its argument that the petition for certiorari they filed before the Court of Appeals is the appropriate remedy.

We disagree. Certiorari cannot be used as a substitute for the lost or lapsed remedy of appeal especially if such loss or lapse was occasioned by one’s own neglect or error in the choice of remedies.40 [Sempio vs. Court of Appeals, 263 SCRA 617 [1996].] And it is undisputed that the cause for the late filing of the notice to appeal is the neglect of the counsel for petitioner to do so.

WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby DISMISSED.

SO ORDERED. Kycalr

Bellosillo, (Chairman), Mendoza, and Quisumbing, JJ., concur.