MAGIN VELEZ AND LUCY VELEZ, PETITIONERS, VS. COURT OF APPEALS, (THROUGH ITS SPECIAL FIFTH DIVISION COMPOSED OF EDMUNDO PICCIO, HERMOGENES CONCEPCION, JR., AND ANTONIO CAñIZARES,…

This present special civil action for certiorari, prohibition and
mandamus is directed against certain resolutions of the Court of Appeals in CA
– G. R. No. 35867-R, in connection with proceedings in the Court
of First Instance of Cebu after judgment was
rendered in its Civil Case No. 7950.  That case, instituted by the spouses Magin and Lucy Velez, now petitioners,
against Uldarico Bacay, now
one of the respondents, the Social Security System and the Home Financing Com­mission, was
for rescission
of a deed of absolute sale of a house and lot, with assumption of mortgage,
executed by the said spouses in favor of Bacay on
January 15, 1962.  The judgment,
rendered on February 25, 1965,
declared the sale with assumption of mortgage resolved and rescinded and, among
other dispositions, ordered Bacay to make certain
money payments to the plaintiffs and to restore to them the possession of the property subject of the sale.  At the same
time the cross-claims of the Social
Security System and the Home Financing
Commission against their co-defendant Bacay were
dismissed.

Bacay received a copy of the decision on March 2, 1965.  On
the following March 31 he filed a notice of appeal and a record on appeal,
consideration of which was, upon his request, set for April 15,
1965.  On May 12, 1965, however, upon motion of the plaintiffs the Court of First Instance disapproved the record on appeal on the ground that the appeal bond, which had been filed
only on April 26, 1965, was
out of time.  Bacay
moved to reconsider but was turned down; and on May 18, 1965, upon motion of the plaintiffs the court ordered execution.  The corresponding writ was issued on May 25, 1965; Bacay
moved on the same date that it be quashed; and the plain­tiffs in turn moved
that Bacay be declared in contempt of court.

On June 4, 1965 both motions were resolved: the motion to quash was denied and Bacay was ordered “to vacate the house and lot in question… and deliver the
possession of the same to the plaintiffs through the intervention of the
Sheriff within a period of five days from today, under pain of contempt of
court and arrest and confinement in jail until he complies.”

On June 5, 1965
Bacay filed a notice of appeal, to the Court of Appeals
from the aforesaid order of June 4, and asked the trial court to fix a bond for
the stay of its execution.

In the meantime – on June
1, 1965 – Bacay filed a petition for
relief from the order of May 12 denying his appeal from the decision of February 25, 1965.  And on June 8 he filed a special civil action
for certiorari and prohibition in the Court of Appeals against the Velez
spouses, the presiding Judge of the trial court (Hon. Modesto R. Ramolete) and the sheriff of the City of Cebu, praying that the order of June 4, 1965 be set aside;
that execution of the judgment be stayed; that the respondents be enjoined not
to disturb the petitioner’s possession of the party in question; and that the trial court be ordered to act on
the petition for relief.  It
appears, however, that this petition for relief was denied in an order dated June 7, 1965, although Bacay had not yet been notified of the denial when he went on certiorari and prohibition to the Court of
Appeals.

On June 9, 1965
the sheriff of the City of Cebu
implemented the writ of execution and delivered the pro­perty to the Velez
spouses.  This was at 1:45 in the afternoon.  Meanwhile Bacay’s
petition for certiorari and prohibition had been given due course in the Court
of Appeals; and pursuant to the prayer for preliminary injunction therein the
said Court issued the writ ex–parte,
also on June 9, 1965, of which Judge Ramolete was
notified at 9:10 and the sheriff at 9:30, both in the evening of the same day.

The plaintiff-spouses offered to post a counterbond
to lift the writ of preliminary injunction, but the same was denied on June 14, 1965.  On June 23,
the Court of Appeals issued another order, directing the provincial
sheriff, herein respondent Vicente Miranda, to “maintain petitioner’s
possession of the premises, ousting respondents therefrom,”
and requiring the City sheriff as well as the Velez spouses to show cause why
they should not be cited for contempt of court.

The provincial sheriff filed his return of service on June 25, 1965, informing the Court of
Appeals that the writ of preliminary injunction could not be enforced because
the respondent spouses refused to vacate the pre­mises and had all the doors of
the house locked.

The Velez spouses filed
their answer, dated July 1, 1965, to the petition for certiorari, and
prohibition, denying the substantial averments therein and pleading by way of defense that petitioner Bacay had not exhausted his remedies in the
trial court since he had not yet received the order denying his petition for
relief when he filed his petition before the Court of Appeals, and that in fact
he filed a motion for reconsideration of the said order on June
18, 1965.

One of the members of the
division in the Court of Appeals which acted on the petition for
certiorari and prohibition was Mr. Justice Edmundo S.
Piccio.  On July 1, 1965 the Velez spouses filed a
motion that he disqualify himself from taking part in the consideration of the
case on the ground, supported by an affidavit of Magin
Velez, that he had allegedly granted private interviews with Bacay’s wife before the order of June 23 was issued.  The records before us do not show that this motion has
been expressly resolved.

On July 14, 1965
the Court of Appeals issued an order for the arrest of Magin
and Lucy Velez and their confinement in the provincial jail of Cebu until they re­linquished the possession
of the disputed property to Bacay.  The order was carried out and the parties
were accordingly incarcerated.

On July 16, 1965
Velez spouses filed in this Court the present petition for certiorari,
prohibition and mandamus.  On July 20
this Court issued a restraining order to stop implementation of the resolution
of the orders of the Court of Appeals of June 23 and July 14; and on July 22,
this Court issued another resolution for the release of the petitioners upon a
bond of P1, 000.00.

Three
issues are raised in the petition before us.

1. The petitioners’ first point is that the Court of Appeals acted
without or in excess of jurisdiction in giving due course to Bacay’s petition for certiorari and prohibition before
it.  In support of this averment the
petitioners invoke the finality of the decision of the Court of First Instance
and hence the propriety of the order of execution issued by it; claim that Bacay still had adequate remedies at law available to him, namely, stay such execution upon bond under Section 2 of Rule 39 as well as appeal from
the order of the trial court denying his petition for relief.  These questions, however, are precisely the
questions which should be litigated and resolved in the Court of Appeals in
connection with the petition before it, and which in fact had been raised by
the herein petitioners in their answer thereto. 
There can be no doubt that the petition was properly lodged in the said
court, the writ prayed for therein being in aid of its appellate
jurisdiction.  We cannot preempt its
authority and function by considering, in the present special civil action, the
issues that it should pass upon and decide in the first instance.  To say that the Court of Appeals abused its
discretion in giving due course to the petition because the decision of the
trial court had become final, or that the petitioner therein had other adequate
remedies at law, is to beg the very questions at issue before it.  We therefore refrain from ruling one way or
the other on these questions despite the rather exhaustive discussion thereof
indulged in by the parties.

2. The next issue refers to the petitioners’ motion in the Court of
Appeals to disqualify Justice Edmundo S. Piccio and his failure
to resolve the said motion before taking further action in the case.  It
should be noted, however, that when Justice Piccio
did take such action, as in the
issuance of the order of arrest of herein petitioners, the motion for disqualification
was impliedly denied.  It any event it cannot be said that the action was an absolute nullity, because
the reason adduced to disqualify him,
which is nothing but an indirect imputation of partiality or bias, is
not one of the grounds enumerated in the first paragraph of Section 1 of Rule
137 concerning disqualification of judges. 
Other than upon those grounds a judge cannot be disqualified by a litigant.^[1] Insofar as further proceedings in
the Court of Appeals are concerned the issue of disquali­fication has become
moot, since death has long since re­moved Justice Piccio
from membership in the appellate court.

3. The petitioners’ last plea is against the resolution of the
Court of Appeals finding them guilty of contempt for disobeying the writ of
preliminary injunction and the order of June
23, 1965 for their dispossession. 
On this point we believe that the petitioners are entitled to the relief
prayed for.  The writ was prohibitory in
nature, the purpose of which was to stop enforcement of the writ of execution
issued by the trial court.  When the
injunction was served, however, the execution had already been implemented and
the petitioners herein placed by the city sheriff in actual possession of the
property in dispute.  There was nothing
more to enjoin or prohibit;^[2]
and no mandatory injunction was asked for or issued subsequently to revert the
parties to their former position vis-a-vis said
property.  And with respect to the order of June 23, 1965, it was addressed not to the herein
petitioners but to the provincial sheriff, herein respondent Vicente
Miranda.  Under the circumstances we are
not prepared to say that the act of said petitioners in remaining in possession
of the property, where they had been placed by virtue of the writ of execution
issued by the trial court, constituted contempt of the Court of Appeals.

WHEREFORE the writ prayed for is denied, except with
respect to the order of contempt dated July
14, 1965, which is hereby set aside.  No pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Castro,
Fernando, Teehankee, Barredo,
and Villamor,
JJ., concur.

^[1]
Pimentel vs. Salonga, G. R. No. L-27934, Sept. 18, 1967; 21 SCRA 160.

^[2]
Aragones vs. Subido,
G. R. No. L-24303, Sept. 23, 1968;
25 SCRA, 95, 101.