JOSE H. MENDOZA, PLAINTIFF AND APPELLEE, VS. ANDRES ALANO AND GREGORIO SALCEDA, DEFENDANTS AND APPELLANTS.

This is originally an appeal to the Court of Appeals from an order of the
Court of First Instance of Camarines Sur, Hon. Perfecto R. Palacio, presiding,
dated September 20, 1956, entered in Civil Case No. 90 of his court, declaring
Andres Alano and Gregorio Salceda guilty of contempt of court under subsection
(b) of Section 3 of Rule 64 of the Rules of Court and sentencing each of them to
suffer an imprisonment of four months. For the reason that the only question
raised in this appeal is purely of law, the Court of Appeals has certified the
case to Us for review.

In Civil Case No. 90, entitled “Jose H. Mendoza, plaintiff, versus Andres
Alano and Gregorio Salceda, defendants,” for forcible entry, and unlawful
detainer, judgment was rendered awarding possession of two parcels of land
occupied by the defendants in favor of the plaintiff Mendoza. The Clerk of Court
issued a writ of execution, Exhibit “B”, which commands the defendants Andres
Alano and Gregorio Salceda to vacate the premises and to deliver the same to the
plaintiff and orders the city sheriff to refrain and desist said defendants from
possessing and benefiting from the lands described, etc. On March 10, 1956,
Deputy Sheriff Pedro Rivera went to the house of the defendants to deliver the
writ. Gregorio Salceda refused to accept the writ, while Pedro Alano received
the writ. Both defendants, however, refused to vacate the premises, as a
consequence of which the sheriff was not able to deliver the same to the
plaintiff. For this reason the plaintiff filed a motion to declare the
defendants in contempt, alleging therein the refusal of the defendants to vacate
the premises inspite of service to them of the writ of execution.

The trial court required the defendants to answer the motion. On May 9, 1956,
defendant Alano filed his answer, asking suspension of the hearing on the
contempt charge until after termination of Civil Case No. 3276 filed by him to
annul the decision sought to be enforced. On May 18, 1956, defendant Salceda
also filed his answer, claiming that plaintiff cannot enforce the decision
because he is disqualified by law to lease the lands from the Bureau of Lands
because he is a big landowner.

After several postponements, a trial on the contempt charge was conducted,
and the lower court, thereafter, issued the order in question. Hence this
appeal.

The record discloses that only defendant-appellant Andres Alano has filed his
brief.

It is claimed by the appellant that the judgment sought to be enforced is an
ordinary judgment enforceable under the provisions of Sec. 8, paragraph (d) of
Rule 39; that the clerk of court had no authority to issue the writ directed to
the defendants, but instead should have directed it to the sheriff; that the
defendants had not disobeyed any order of the court, but only the unauthorized
writ issued by its clerk.

We find the above contentions to be well founded. The judgment of the lower
court is for delivery of possession of a piece of land to the plaintiff. By
express provisions of the Rules, such kind of judgment must be executed in
accordance with paragraph (d), Section 8 of Rule 39, and not with Section 9
thereof.

“The execution must issue in the name of the Republic of the Philippines from
the court in which the judgment or order is entered; must intelligibly refer to
such judgment or order, stating the court, province, and municipality where it
is of record, and the amount actually due thereon if it be for money; and must
require the sheriff or other proper officer to whom it is directed substantially
as follows:

x x x x

“(d) If it be for the delivery of the possession of real or personal
property, to deliver the possession of the same, describing it, to the party
entitled thereto, and to satisfy any costs, damages, rents, or profits covered
by the judgment out of the personal property, and if sufficient personal
property cannot be found, then out of the real property.”

The clerk of court had no authority to treat the judgment as a special
judgment and issue a writ in accordance with Section 9, Rule 39. He should have
directed the writ to the sheriff, for the latter to place the plaintiff in
possession of the premises in accordance with Section 8, paragraph (d), Rule 39,
instead of directing the writ to the defendants themselves. Legally speaking,
there was, therefore, no valid writ issued and consequently no legal and valid
order disobeyed by the defendants.

Moreover, We have already held in the case of Quizon vs. Philippine
National Bank, 85 Phil., 459 that refusal to comply with a judgment ordering
delivery of real property is not punishable for contempt under paragraph (b), of
Section 3, of Rule 64, but under paragraph (h) thereof.

“* * * when the judgment requires the delivery of real property, it must be
executed not in accordance with section 9 of Rule 39 but in accordance with
paragraph (d) of section 8, Rule 39 and any contempt proceeding arising
therefrom must be based on paragraph (h) of section 3, Rule 64, and not on
paragraph (b) of the same section in relation to section 9 of Rule
39.”

Paragraph (h), Section 3, Rule 64 mentioned in the above-quoted decision
punishes for contempt:

“The act of a person who after being dispossessed or ejected from any real
property by the judgment or process of any court of competent jurisdiction,
enters or attempts to enter into or upon such real property, for the purpose of
executing acts of ownership or possession or in any manner disturbs the
possession given to the person adjudged to be entitled
thereto.”

But the judgment in the case at bar could not be executed and plaintiff
placed in possession of the premises, because of the refusal of the defendants
to vacate the same. Hence defendants may not be punished for contempt under the
above-quoted provision of paragraph (h) Section 3, Rule 64, because they did not
enter upon the lands after plaintiff had been placed in possession thereof by
the sheriff.

Wherefore, the order appealed from is hereby set aside, without finding as to
costs.

Bengzon, C.J., Padilla, Bautista Angelo, Concepcion, Reyes, J.B.L.,
Paredes, Dizon, De Leon, and Natividad, JJ., concur.