Rule 57

Attachment
Attachment is of 3 stages
1. Order for the issuance of the writ of preliminary attachment
2. Issuance of the writ
3. Implementation of the writ (by the sheriff)
-requires that the court has to acquire jurisdiction over the person of the respondent/defendant;
such jurisdiction not required in the 1st and 2nd stages.
Reason: it is only when the writ is already implemented by the sheriff (in the implementation of
the writ), where the summons should be served by the sheriff contemporaneously, together w/ it is
the complaint, and it must also include the order granting the writ, the writ of course, and the bond.

Service of summons cannot be done in the first two stages (only on the 3 rd stage), because the by doing so, the
respondent might be able to abscond with his properties.

It is preliminary because it can be part and parcel of the prayer.

When can preliminary attachment be sought/issued? (period)

= at the commencement or at any stage of the complaint before entry of judgement
=cannot be after entry of judgement
Reason: PA can only be availed of at any time before entry of judgement because when there is
already entry of judgement, the appropriate remedy is execution. (file a motion for execution)

PA is for security purposes.

Grounds for the issuance of a writ of PA
The writ of PI may be issued in the ff cases: (Sec. 1, Rule 57-memorize)
1. Actions for the recovery of a specified amount of money or damages, other than moral and
exemplary, on a cause of action arising from law, contract, quasi-contract, delict, or
quasi-delict against a party who is about to depart from the Philippines with intent to
defraud his creditors
2. Actions for money or property embezzled or fraudulently misapplied or converted to his own
use by a public officer, or an officer of a corporation, or an attorney, factor, broker agent, or clerk, in the
course of his employment as such, or by other person in a fiduciary capacity, or for a willful violation of duty
3. Actions to recover the possession of property unjustly or fraudulently taken, detained or
converted, when the property, or any part thereof, has been concealed, removed, or
disposed of to prevent its being found or taken by the applicant or an authorized person
4. Actions against a party who has been guilty of a fraud in contracting the debt or incurring or
performance the obligation upon which the action is brought
5. Actions against a party who has removed or disposed of his property, or is about to do so,
with intent to defraud his creditors
6. Actions against non-residents not found in the Philippines, or person upon whom summons
may be served by publication

If your case is not one of the 6 enumerated, you cannot ask for the issuance of a writ of PA
Common to all of those grounds enumerated:
= there is intent on the part of the defendant to defraud creditors, or with intent to abscond
That is why you can ask for preliminary attachment as a sort of security for whatever judgement which
might be rendered in your favor, at least you can run after these particular properties which are attached.

This can be part and parcel of the complaint, and this should be. So when you file a complaint, for example for
collection of sum of money, you can ask there, a prayer for the issuance of a writ of PA.
So that the prayer for the issuance of a writ of PA will be granted by the court, it must comply with the following
requirements:
1. Cause of action must be stated in an affidavit.
Contents of the affidavit: (memorize)
1. The facts which constitute the cause of action
2. The fact that it is one of those enumerated and allowed by Sec.1, Rule 57
3. That there is no sufficient security, or no other means to fulfil the obligation.
Judge S: Could I issue a writ of PA in a case where the debt is covered by a real
estate mortgage, but the plaintiff-creditor instead of foreclosing the real estate
mortgage opted to file a collection of a sum of money case with the prayer for the
issuance of a writ of PA? As a judge, would I be correct if I will grant the writ of PA
prayed for? Yes or No?
=No, because in the prayer for the issuance of a writ of PA, there must
be no sufficient securities for that particular debt. That debt is already secured
by the real estate mortgage; hence the prayer for the issuance of a writ of PA is
improper under the circumstances.

And aside from this particular affidavit, what is another requirement before the court
issues a writ of PA? = Bond

2. Bond
How much is the amount of the bond?
=the amount is based upon the amount as ordered by the court or equivalent to
the value of the property sought to be attached
In fact, when the writ of PA will now be served by the sheriff, the summons, the
complaint, the order, the affidavit and the bond must likewise be served upon the defendant- debtor
or obligor.

Why is it that the summons, the complaint, must contain the order granting the writ, the writ itself and the bond?
(served all upon the person of the defendant-debtor-obligor) Aside from the fact that the court must acquire
jurisdiction over the person of the defendant, what is the justification? Particularly on the aspect of the bond?
=so that you will know how much is your counter bond
On the part of the defendant-debtor-obligor, what can be resorted to by him aside from questioning the fact that
the bond posted by the plaintiff-creditor-obligee is not sufficient to the value of the property prayed for to be
attached, he can question that, what is it?
You are the defendant-debtor, tapos you received the summons, the complaint, the order, the affidavit and the
bond. To protect yourself, what will you do?
= file a counter bond
Can you post a counter bond? =Yes.
What is the reason why you can post a counter bond? =so that your property can be discharged.
(Judge S: pwedeeee> ) The property attached can be discharged because you have filed a counter bond. That’s
what we do. If you don’t want that your property is attached while the case is pending, you post a counter bond
equivalent to the amount of the bond granted by the court.

Why is it that there has to be a bond if you pray for the issuance of a writ of PA?
=because the bond is to answer for whatever damages which might be suffered by the defendant-debtor-
obligor if it turned out that the plaintiff is not entitled to the property attached because at the end of the day, he
might have lost in the case.

The counter bond is for what?

=To answer for damages which might be incurred by the plaintiff-creditor-obligee if it turns out that talaga
he is entitled to the property prayed for in the attachment.
What are the grounds where the writ of PA can be dissolved?(discharged)-memorize
1. Filing of a counter bond
2. In case of excessive attachment, partial discharge can be done
3. Bond was irregularly issued by the court
4. When judgement was issued in favour of the defendant
5. Property attached is exempt from execution

In the issuance of a writ of PA, it should not be upon a property exempt from execution.
What are these properties which are exempt from execution? (see Rule 39) Can you give me at least 3 properties
which are exempt from execution?
1. Family home
How much? = 200,000 for rural areas; 300,000 for urban
(might increase depending on the changes in the currency)
2. Tools for occupation
It is your responsibility to take note of these properties exempt from execution. Properties which should be part of
a prayer for the issuance of a writ of PA must be properties which are not exempted from execution.

What are the obligations of the sheriff in the implementation of a writ?

1. To serve the summons, the complaint, the order, the writ, and the bond
2. To make a return (no period provided)

How should the writ be implemented? How is it done? How will the sheriff do it?
= It depends on what kind of property is attached. (see Sec. 7, Rule 57 **memorize**)
Real Property = by submitting a copy of the writ of PA issued by the court to the office of the
Registry of Deeds of the place or city where the property is located; Registry of Deeds
should annotate the writ of PA in the title of the property.
Personal Property = taking and safely keeping it in his custody
Shares of stocks = by leaving a copy of the writ and a notice that such is attached in pursuance
of the writ with the president or managing agent of the corporation or company
Money in the Bank= garnishment

The property subject of the writ of PA is claimed by a third person

= he files an affidavit of his title thereto; third party becomes a forced intervenor
What will happen? Will the sheriff still proceed with the implementation of the writ of PA if the property is claimed
by a third person?
= it depends.
Something has to be done on the part of that third person and what is that?
=third party claim must be filed with the sheriff.
What must he prove there so that the sheriff will not proceed with the implementation of the writ?
= that he has interest over the property
What else? Yun lang ba? Time na ba? Sige we will stop there lang muna. 

Effects when property claimed by third person

Q:What must the 3rd person do if he has claim on that property?

A: the 3rd person must make an affidavit stating or alleging his title and right to possession to the sheriff. The
sheriff need not to proceed to the attachment, however, if the attaching party or his agent files a bond in favor of
the 3rd party, but the period to claim the bond must be filed within 120 days from the institution of the bond. The
sheriff should not be liable for whatever damages for not continuing with the writ of attachment issued by the
court.
Q: if plaintiff own in the case, how should the procedure be, what is the first that has to be done to the satisfy the
judgement awarded by the court?
A: sales, proceeds of the sale, if the proceeds of the sale of the property is insufficient he can run after the attach
real or personal property, if still not sufficient he can run after the credits of the debtor-defendant- obligor towards
the 3rd person, and after applying this , if there is an excess, return the excess to the defendant-debtor-obligor.

Q:In the context of counter bond, when can this be taken into account by the plaintiff-creditor- obligee.
A: liability counter-bond is attached, is when the judgment is rendered and an execution was made, and judgment
remains unsatisfied- the counterbond should answer automatically whatever judgment in favor of the plaintiff-
creditor- obligee.

Q:what if the plaintiff loses and defendant won?

A: the whole money or sum which were taken into possession by the sheriff should be turn over to the defendant
obligor.

Q:the plaintiff is not entitled to the writ of attachment prayed for, how will the defendant run after the bond?
A: application for damages can be done before trial, before appeal is perfected, or before the judgment becomes
executory. His claim should be in the same case and same action.
Except.
a) Where the principal case was dismissed for lack of jurisdiction by the trial court without giving an opportunity to
the party whose property was attached to apply for and prove his claim for damages; and (b) Where the damages
by reason of the attachment was sustained by a third person who was not a party to the action wherein such writ
was issued.

Rule 58 preliminary injunction

Jurisdiction- all courts can now issue the writ of preliminary injunction
Can only be filed on the place or court where you prayed for.

Can be a main action, it can also be an ancillary remedy,

Q:what is injunction?
A:Injunction is a judicial writ, process or proceeding whereby a party is ordered to do or refrain from doing a
particular act. However, it can also be a writ to compel a person to do an act, and it is called a preliminary
mandatory injunction.

In the context of P.I. the act should not be done yet but is about to be done by the defendant. Exception if the act is
continuing in nature for example a case of forcible entry.

A mandatory injunction is an extraordinary remedy and will be granted only on a showing that (a) the invasion of
the right is material and substantial, (b) the right of the complainant is clear and unmistakable, and (c) there is an
urgent and paramount necessity for the writ to prevent serious damage (d) it should not create a new relation
between the parties which was arbitrarily interrupted by the defendant.

Instances where RTC CANNOT issue P.I. Read page 725-726

1 labor disputes
2 must be limited within the courts territorial jurisdiction
3 cannot issue on quasi judicial agencies
4 court of co-equal jurisdiction
5 R.A, 8975 government infrastructure

You can ask for P.I. while the case is going on, but it can also be done a final injunction, where a person / defendant
is perpetually prevented from doing something.

Limitation- cannot issue a writ of P.I. on

1 disputed property
2 prevent an issuance of an ordinance.

Requisites for the issuance of P.I.

1 there must be a verified application
2 constituting the ground why you are asking for a P.I. (Memorize Sec.3)
3 unless exempted by the court, file a bond.
Amount of the bond- discretion of the court.

In Multiple sala court

Issuance of the writ of P.I. if there is an extreme urgency and the applicant will suffer grave injustice and
irreparable injury, the court within 72 hours conduct a hearing. In no case shall the total period of effectivity of the
TRO exceed 20 days, including the original 72 hours provided herein.

Q: what is irreparable?
A: if it is of such constant and frequent recurrence that no fair or reasonable redress can be had therefor in a court
of law.

Distinction between injunction and prohibition

a. Injunction is generally directed against a party in the action, while prohibition is directed against a court, tribunal
or person exercising judicial powers.
b. Injunction does not involve the jurisdiction of the court, whereas prohibition may be on the ground that the court
against whom the writ is sought acted without or in excess of jurisdiction.
c. Injunction may be the main action itself, or just a provisional remedy in the main action, whereas prohibition is
always a main action. Hence, for temporary restraint in a proceeding for prohibition, preliminary injunction must be
sought therein.

Rule 59-60: Preliminary Injunction continuation

If there is a distinct emergency tapos it will cause an irreparable damage to the applicant if not granted by the court,
what’s to be done is the court grants a 72-hour temporary restraining order. Will that be contemporaneously served
with the summons and the complaint on the defendant? Yes.

What are the grounds for dissolution of the writ of preliminary injunction?

1. The complaint is insufficient;

2. The defendant is permitted to post a counter-bond, it appearing that he would sustain great damage while
the plaintiff can be amply compensated; and/or
3. On other grounds, as where the bond posted by the applicant turned out to be insufficient or defective.

The procedure on how to run after...for damages is the same procedure as in Section 20 of the rule on the issuance
of preliminary attachment. The rule on how you can claim for damages arising from the bond posted by the applicant.
Memorize it.

Receivership

What is a receiver? Receiver is a person appointed by the court in behalf of all the parties to an action for the purpose
of preserving the property involved in the suit and to protect the rights of all the parties under the direction of the
court.

Can a party to a case be appointed as receiver? Not, unless there is consent of all the parties concerned.

Preliminary injunction can be a principal action or an ancillary remedy, is it the same with receivership? Yes.
Receivership can be a principal action or an ancillary remedy.

In the issuance of the writ of preliminary injunction, diba it is only available while the case is going on. Is it the same
rule in the appointment of a receiver? No, because appointment of receiver can be done in any stage of the
proceedings even if the decision is already final and executor and even if it’s on appeal.

If the case is on appeal, where do you ask for the appointment of a receiver? Appellate court or the court of origin?
CA or RTC? Answer is the court of origin (RTC) because it has residual jurisdiction.

When you ask for a receiver, what do you do? The party will file a verified petition. If the receivership is an ancillary
remedy, it can be done by motion but the motion must be (verified?).

What are the grounds for the appointment of a receiver? Section 1 of Rule 59. Memorize.

In a case for recovery of possession with damages, can you pray for the appointment of a receiver? Or in a case for
the quieting of title or recovery of ownership, can you pray for the appointment of a receiver through a verified
motion? As a rule, in cases which involve titles or the issue on who truly owns the property, receivership is not
allowed, unless the applicant can prove that the non- appointment of a receiver will cause serious injuries on his
part. This can be considered an exception to the rule.

What are the other requirements in asking for receivership? Filing of a bond by the applicant. The bond shall be
determined by the court.
The court has granted a motion, what should the receiver do? The receiver will take his oath and will also file a bond.

What is the extent of the power of the receiver? (Enumeration from the book) Are they all acts of administration?
Can the receiver sell the property? The extent of the power of the receiver is up to administration and preservation
of the property. Before there can be sale or mortgage, there must be leave of court and order issued by the court.

Can we compel a person to comply with this order? Yes. What happens if the person refuses to comply with this
order? He can be punished for direct or indirect contempt.

What is this power of the receiver wherein even if he is not a party to the case, he can still consult. This is an exception
to the rule daw that even if he’s not a party to the case, he has the power to intervene.

Can there be posting of counter-bond on the part of the person who is ______ with the appointment of the receiver?
If there is a counter-bond, what is the effect?

What are the grounds for the dissolution of receivership? Section 8 of Rule 59.

Can you ask for a second issuance of a writ of preliminary injunction? As a general rule, the law does not allow the
second issuance of a writ of preliminary injunction; however, when there are facts which are unknown during the
litigation and became known during the second application, the court can allow the second issuance of the writ of
preliminary injunction.

Replevin

Replevin is the writ itself, what is the main case? The main case is for the recovery of possession of personal property
with prayer for the issuance of writ of replevin. The application for the writ of replevin should be done before the
defendant files his answer. It is always an ancillary remedy.

What are the requisites for the issuance of writ of replevin? Affidavit and bond (Section 2).

How much is the bond? The bond must be double the value of the property sought to be recovered. Purpose of the
bond is to answer for damages.

CONTINUATION REPLEVIN….

RULE 60: Replevin and

Rule 61: Support Pendente Lite

JS: Recap. According to section 1 that the writ of replevin is anchored in principal case of recovery of possession of
personal property. but the writ of replevin must be secure before an answer. The last we have discussed is the 2
requisites in connection with the writ of replevin, first file a verify application which contain an affidavit alleging the
grounds thereof and second you have to give a bond double the value of the property. We have no more question.

Ms. Peque. Give the distinctions between writ of replevin vs preliminary attachment. Kim: In replevin the principal
action is recovery of personal property while in attachment the recovery of personal property is only incidental to
ther main action. In replevin the action is limited only to recovery of personal property while in attachment is it not
limited to recovery only personal property But also to real and other personal property. In replevin can be sought if
the property is in the possession of the defendant while in attachment it not only limited if the possession is in the
defendant it can still be sought even if the possession is in the hands of a third person. In replevin the property need
not be in custodia legis while in attachment it must be in custodia legis. In replevin it is available even if the property
is not concealed while attachment is available if the personal property is unjustly or fraudulently detained.

JS: What is the duty of the sheriff after the requisites for replevin is complied with? Kim: To serve the application
together with to the person named therewith for the purpose of taking possession of the property subject of the
writ of replevin.

JS: On the part of the defendant. what should he do so the property will not be subjected to the writ of replevin?
Kim: The defendant may post a redelivery bond.

JS: Is there a required days?

Kim: 5 Days.

JS: aside from posting a redelivery bond. Can there be other grounds?

Kim: When the bond of applicant is insufficient and where the property was not returned to the plaintiff for no
reason whatsoever.

JS: what about if it is claim by a third person?

Kim: the same procedure in attachment if property is claimed by third person. The third person must file an affidavit
containing his right as far as property is concerned and it must be served with sheriff and once it is complied the
sheriff is not bound to return the property to the plaintiff and shriff iis not bound for whatever damages that plaintiff
will sustain.

JS: Diba the third person was able to prove that he has a right on the property. Can there be an instance that the
plaintiff may still require the sheriff to deliver the property? what should he do?

Kim: Give a bond for whatever damage the third person may sustain he can require now the sheriff for the delivery
of the property.

JS: It should be filed within 12o days from the time the property is claimed by 3rd person.

JS: Thank you Ms. Peque. Ms. Diolola. I think there is a 10 day period there what is the 10 day period on the part of
the sheriff? Not ready? DE DIOS EDUARD

JS: After the sheriff executed the writ of replevin, what is his obligation? EDUARD: There must be return to the court
within 10 days. JS: How will the court render judgment? EDUARD: in Alternative.

JS: What is this alternative judgment?

EDUARD: It's either you compel the defendant to return the property or if return is not possible return the value of
the property.

JS: What is support Pendente Lite? Diba you have taken persons and family relations law. This is just a review. The
main action here is?
EDUARD: Support.

JS: Support with a prayer for issuance of support pendente lite. How this is done?

EDUARD: File a verified application for issuance of support pendente lite on commence of the action until before
final judgment.

JS: Diba you remember attachment, injunction and support pendente lite has similar instance when can be sought
for? at commencement of the action but before final judgment. In receivership it can still be applied even if after
final judgment and replevin before an answer. Okay. in connection to your application. What should you attached
there?

EDUARD: Depositions, affidavits and other documents which must be attached in the verified application.

JS: After filing of verified application. What should the court do?

EDUARD: Shall require the defendant to submit a comment which shall also be accompanied by affidavits,
depositions and other documents and should be submitted 5 days from receipt of the order and after filing of the
comment there must be a hearing.

JS: DE DIOS what are the basis of the court to grant Support pendente lite?

DE DIOS: Financial condition. JS: Is this support only to support given to children? or can the wife also ask for
support?

DE DIOS: No. The wife can also ask for support under the family code.

JS: What can be the best legal ground wherein the defendant may raise so he cannot extend support pendente lite
to the wife?

DE DIOS: If the wife committed adultery.

JS: Correct. Now. Clear na tayo on that. The court granted support pendente lite while the case for support was
pending. and it was found out that that the wife is not entitled for support after the full blown trial? DE DIOS:
restitution plus legal interest. JS: What is the other remedy?

DE DIOS: File an separate action the person who is supposed to give legally support.

JS: In crimes of seduction, rape, abduction. One of the orders which can be sought for is support the offspring. But
this one only happened in criminal case. But this one can only be granted in criminal case if what?

DE DIOS: That the civil action is not reserved in the criminal action.

JS: Thank you Mr. DE DIOS.

Special Civil Action Introduction

Jill. Intro SCA rule 62:

JS: Adrales. Can you just enumerate lang muna.

Jill:

1. Interpleader
2. Expropriation
3. Foreclosure of real estate mortgage
4. Forcible entry and unlawful detainer
5. Partition
6. Declaratory Relief
7. Review of judgment of the COMELEC/COA
8. Certiorari
9. Prohibition
10. Mandamus
11. Quo warranto
12. Contempt

JS: Can you enumerate special civil actions which are commenced by complaint and by petition.

Jill: Special Civil action initiated by complaint:

1. Interpleader
2. Foreclosure of real estate mortgage
3. Forcible entry and unlawful detainer
4. Partition
5. Expropriation
Special Civil action initiated by petition:

1. Declaratory Relief
2. Review of judgment of the COMELEC/COA
3. Certiorari
4. Prohibition
5. Mandamus
6. Quo warranto
7. Contempt
JS: So we will start with you tom. Interpleader and declaratory relief.

JS: Diba if you are married to a foreigner and he was able to obtain a valid divorce decree abroad what will you do
in order to remarry in the Philippines? Diba the law says that automatically the Filipino spouse can remarry again. It
is also applicable to Filipino citizens who became an American citizen and obtain a foreign divorce. You just have to
file recognition of valid divorce but the Supreme Court said in one case that the right action is declaratory relief. You
will know that tomorrow. Thank you.

Rule 62: Interpleader and

Rule 63: Declaratory Relief and Similar Remedies
 Which of these special civil actions are commenced by complaint and by filing petition?
 Even in the first level courts, they can actually issue some of these special civil actions, provided that the
amount is within the jurisdiction of the first level courts.
o Amount for first level courts – 300,000.00

INTERPLEADER

What is an interpleader?
Remedy whereby a person who has a property in his possession or has an obligation to render wholly or partially,
without claiming any right or interest in both, comes to court and asks that defendants who have conflicting claims
thereon or who consider themselves entitled to demand compliance with the obligation, be required to litigate among
themselves to determine who is entitled to the property or payment or obligation.

Procedurally speaking, it is filed:

- Person who has the property files in court an action to compel the defendants to prove among themselves
who is entitled;
- After receipt of summons together with complaint, defendants file answer and serve copies of their answers
to their co-defendants. (Rationale: Because they are the ones who are going to prove as to who among
them is/are entitled to the property, payment or obligation.)
- Motion to dismiss instead of answer? YES. But lawyers must observe restraint in filing MTDs. Raise the
grounds for MTD as affirmative defenses as per agreement of the Supreme Court and the IBP.
- If MTD is denied, Fresh Period Rule shall apply to file the answer.

DECLARATORY RELIEF AND SIMILAR REMEDIES

Similar remedies:

- Action to quiet title

- Action for the reformation of an instrument (remedy when one of the parties was led to believe that he was
signing a mortgage, but was actually a deed of absolute sale; vitiated consent on the ground of mistake;
presupposes the contract is valid but did not express true intent of parties)
- Action to consolidate ownership (sale with right to repurchase)

Requisites of an action for declaratory relief:

- Subject matter: must be a deed, will, contract or any written instrument; or statute, executive order or
regulation, or ordinance;
- Terms of said documents and the validity thereof are doubtful & require judicial construction;
- No other available relief which may be resorted to;
- No breach of the document in question – no violation has been committed yet. (If there was a violation
committed, declaratory relief is no longer proper. It shall be converted to an ordinary civil action.)
EMPHASIZED OVER & OVER AGAIN.
- Ripe for judicial determination – “ripening seeds” of the particular controversy

Actions or instances which will give rise to filing of an action for declaratory relief: (Section 1)

- Any person interested in a contract, will, deed or other written instrument

- Rights are affected by a statute, executive order or regulation, or ordinance, or any other governmental
regulation

The Supreme Court said in one case that if you want to remarry, because your foreign husband has already filed a
divorce abroad, the proper remedy is DECLARATORY RELIEF.

Issue in declaratory relief: Validity and construction of the document involved.

Entry or notice on the Solicitor General:

 - Special civil action involves the validity or construction of a statute, EO, or any governmental regulation;
- Ordinance: corresponding prosecutor or attorney of the local government unit involved shall be similarly
notified & entitled to be heard. If such ordinance is alleged to be unconstitutional, SG shall be notified and
entitled to be heard. (Section 4)

Court action is discretionary.

- Court may refuse to exercise the power to declare rights & construe instruments in any case where a decision
would not terminate the uncertainty or controversy which gave rise to the action, or in any case where the
declaration or construction is not necessary or proper.

Rule 64: Review of Judgments and Final Orders or Resolutions of the ComElec and COA

*Rule 64 applies only to final decisions of COA and COMELEC because as far as CSC is concerned, reviews in court of
appeals, Petition for review under rule 43 is applied. It is included in quasi-judicial bodies.

* The review here is by means of petition for certiorari under rule 65 to the Supreme Court.

*period for filing is 30 days from except of the decision of said agency. Neypes rule Applies in this rule.

*how many copies? Ans. same rules are applied in rule 42,43,45 and 64 in terms of number of copies served.
1. it must be verified
2. attached original copy and 17 other copies making it 18 copies. Certified true copy must be certified by the clerk
of court of the court which rendered the decision, in this case the COC of Coa or Comelec.
3. material data rule
4. Affidavit of non-forum shopping
5. payment of docket or other lawful fees
6. proof of service to the party ( defendants and to the court included)

* Unlike petition for review under rule 45, rule 65 is an INDEPENDENT ACTION in itself.
* Unlike rule 45, it’s an appeal from the decision of the lower court.
* If the court finds out that there is merit in your petition, the court will file his comment in 18 copies. Attach docket
fees, the same as filing a petition.
Aside from the fact the petition did not comply with the requirements enumerated, what other grounds may warrant
an outright dismissal of the petition under rule 64?
Ans. 1. Failure to comply with the enumerated requisites above.
1. the petition is only filed for delay
2. the petition is unsubstantial to warrant for proceedings.
Case is dismissed on a minute resolution if it fails to comply.

Will it prevent execution of judgment if the court finds out that the petition is with merit under rule 65?
Ans. No. it will stay the decision not unless the SC say so. They will do the stay of decision by means of issuance of
TRO.
Is a reply required here? -- not a mandatory requirement
What is one mandatory requirement before you can petion on certiorari under rule 65?
--there must be a filing first of motion for Reconsideratoin to give the court or quasi agency conderned a chance to
correct its error. It is not a mnadtory under rule 45.

RULE 66QUO WARRANTO

Q: Quo warranto is a remedy to what?

A: It is a remedy by the court to try disputes involving the right to office. In the case cited by Regalado, ruled that if
there are no disputes whatsoever as far as that particular position is concerned but another person actually claims
a right to that particular office, then the remedy is not quo warranto but rather Mandamus under Rule 65 of the
1997, Rules on Civil Procedure.

1. Be that as it may Quo warranto is available in 3 grounds as provided for in Section 1 of Rule 66.

a. against a person who usurps or induces into office;

b. against a public officer who commits an act which constitutes a forfeiture of his office; and

c. an association in the Philippines which is announced as such but is not legally incorporated (applies to de-facto
corporation—a corporation which did not fully comply with the requisites for incorporation, under the Corporation
Code of the Philippines. And under the said law, you are not allowed to attack the existence of a corporation
collaterally , what you will do is file a quo warranto proceedings questioning that corporation as a de-facto
corporation through a Petition for quo warranto)

2. Quo warranto distinguished from election protest.

In quo warranto proceedings the applicant is disqualified from holding the office by reason of ineligibility or disloyalty
while in election contests, there has been irregularity in the conduct of the election that’s why you resort to election
protest.

In quo warranto, the respondent will be ousted but then the petitioner will not resume the position of the
respondent. In election protest, if the respondent is indeed ousted the petitioner is placed in that same position.

3. Quo warranto proceeding involving an elective office distinguished from quo warranto proceeding involving an
appointive office

In Quo warranto proceeding involving an elective office, the issue is the eligibility of the respondent to hold office
while in quo warranto proceeding involving an appointive office, the issue is the validity of the appointment of that
particular person subject of that quo warranto proceeding.

When the petitioner in a quo warranto proceeding in an elective position won in the case, and the respondent who
was declared ineligible in elective position was ordered to vacate said position, the petitioner does not resume the
position vacated. In an appointive position, if it turns out that the appointment is not valid, then the petitioner there
can be placed into that particular position.

So that in reference to that particular concept, as a general rule, the only person who can file a quo warranto
proceeding will be the Government through the Office of the Solicitor General or the public prosecutor’s office
questioning particularly when it comes to elective position. Except in quo warranto proceeding involving an
appointive position wherein any person or individual claims a better right to that particular position so under the
law he is allowed to file a quo warranto proceeding against the one who is actually sitting in that position which he
claimed to be rightfully his.

4. What is the period for the filing of a quo warranto proceeding?

A: 1 year after the cause which gave rise to the filing of the quo warranto proceedings. If it turns out that you are
indeed entitled to that particular office, there can also another claim for damages against the one in possession of
that particular office which is actually belongs to you which also is to be filed within 1 year otherwise the cause of
action has already prescribed.

5. Case of Cristobal vs. Melchor?

GR: 1year period is mandatory, so failure to file a quo warranto proceeding and claim for damages arising out of that
particular cause of action, which will give rise to the filing of that quo warranto proceeding, his right to file and
question the same is already prescribed.

XPN: SC allowed the filing of the quo warranto proceeding even beyond the 1 year mandatory period for filing such,
(Cristobal vs. Melchor) on the basis of equitable consideration because, petitioner in this case did not join the other
petitioners because he was promised of reinstatement from the very start, believing all alone in that promise, he did
not join the other petitioners who were actually later reinstated. It took him time to actually file the quo warranto
proceeding and claim for damages, and the SC allowed him based on the principle of EQUITABLE CONSIDERATION.

6. Aside from filing by the SolGen, or public prosecutor, or the individual claiming the right over the position, who
else may file the petition Quo warranto Proceeding?

A: Upon request of another person towards the Solicitor General and the Public Prosecutors Office, even without
the consent of the Republic of the Philippines.

7. What will happen after the filing of the quo warranto proceeding?

A: Petition should be verified, there must be a hearing as part of due process, and in connection with the hearing,
there must be notice to the respondent (the period not provided however it depends on the period granted to them
by the Court) , then they must be served with summons attaching therewith the complaint and the petition. The
respondent is given 15 days to file his answer.

8. If it turns out that the petitioner won in the case the respondent can be ordered likewise to turnover books,
documents in his possession, and if turns out that he does not comply with this particular order, the Court may
declare him in contempt of Court.

For purposes of your brain damaging final examination, please take consideration whether in the question, I am
referring to a quo warranto proceeding involving an elective position (filed only by the Office of the SolGen by virtue
of the authority granted to them by law) or quo warranto proceeding in an appointive position (filed by and private
individual claiming a right over that particular appointive office).

9. Very important—don’t presume that you know. Where can you file a co-warranto proceeding?

A: Jurisdiction is concurrent with the SC, CA or the RTC exercising territorial jurisdiction where the petitioner is
actually residing. ALWAYS Observe the hierarchy of Courts. RTCCASC

RULE 67EXPROPRIATION

Is expropriation a right? Or a power?

A: Expropriation is a right, the power is the Eminent Domain (one of the inherent powers of the Government).
Another term for expropriation, in the US may also be used in the Philippines—CONDEMNATION proceedings.

1. If the National Government or a Local government wants to expropriate a private land, how will the Government
go about the process of expropriation?

A: The Gov’t should file a verified petition in the place where the property is situated (containing the particular
description of the property sought to be expropriated and also particularly describe the ground or reason for the
expropriation, why it is resorted to).

2. When the verified petition for expropriation was filed in the RTC where the property sought to be expropriated is
located, is it necessary that the applicant petitioner must deposit an amount equivalent to the value as provided for
by the court?

A: YES. (10%) gin correct na niya next day which is 15% of the assessed value of the property sought to be
expropriated. Take note: If the local government is exercising its right to expropriation, there must be an Ordinance
authorizing the Mayor to file a petition for expropriation proceedings otherwise the proceedings may be dismissed
right away.

Is it the same when the expropriation proceeding is filed by the National Government?

A: No. In the case of Republic of the Philippine vs. Piatco(?) The reason why a deposit (15%) has to be made with any
Government Depository Bank which is usually the Landbank is for the petitioner to acquire the Right to Enter
Possession of the property sought to be expropriated. In filing by the National Government, the deposit required is
not only 15% of the assessed value of the property sought to be expropriated but the total value of that property
too enter possession. (Republic of the Philippines vs. Piatco(?)

3. If the verified petition complied with all the requirement is now filed, attached therewith a proof that you have
deposited the required 15% of the assessed value for local government or the total value of the property sought to
be expropriated for National Government, with the Government Depository Bank, and the Government wants to
enter possession right away, what should the Government do?

A: A motion for the Issuance of Writ of Possession should be filed and as long as the petitioner has complied with
the required deposit, it is already ministerial duty of the court to issue a writ of possession for the petitioner-
applicant can enter possession of the property sought to be expropriated. But even it is ministerial on the part of
the Court to grant the motion for the issuance of the Writ of Possession, there is a required Notice to the Defendant.
That’s why you do that by motion and copy furnish the property owner of the property sought to be expropriated
for the issuance of the Writ of Possession.

4. Expropriation is an example of a case which is a kind of a Multiple Appeals. Aside from filing a Notice of Appeal
and payment of appeal fees (in cases of ordinary appeal), there must also be Record on Appeal and file it within 30
days. Therefore when you want to appeal the decision of the RTC, you must file a notice of appeal, payment of the
appeal fees as well as the filing of the Record on Appeal within 30 days from the time you received a copy of the
questioned decision.

5. What can be appealed in expropriation proceedings? What can be subjected to appeal? What can be appealed
here?
A: Orders of the court which could be a subject of multiple appeal: a) order of the court whether the applicant-
petitioner is indeed entitled to expropriate the property, and b) order of the court on Just Compensation

Note: The matter of determining of Just Compensation is a matter of judicial prerogative that’s why there is a need
to assign commissioner. (Epsa vs. Dulay(?))

Continuation Rule 67…. And

Rule 68: Foreclosure of Real Estate Mortgage

JS: In connection with our discussion last night the power of Local Government to expropriate is governed by sec. 19
of Local government code and the deposit shall be 15% not 10% and there must be an order granting the chief
executive to expropriate and 100% for National government pursuant to the case of Epsa vs Dulay. So the purpose
of the deposit is for the plaintiff to enter into the possession of the property subject for expropriation and if they
already entered the possession they have the right to retain the property. As long as the petitioner complied with
the deposit it becomes ministerial on part of the court to grant the motion for issuance of writ of possession.

Diolola. What will the rule if they enter into possession. Diba you will just notify the court. If there is an objection?

Diolola: If there is no objection the defendant from the receipt of summons he must file manifestation to the court.
If there is none defendant must file an answer.

JS: The court will determine if the petitioner has the right to expropriate and issue an order granting the
expropriation. And the order is appealable and even if there is an appeal it will not prevent the court from continuing
the case. And that will be?

Diolola: appointment of not more than 3 commissioner.

JS: For the purpose of?

Diolola: to determine how much is the just compensation on property sought to be expropriated.

JS: And in determining the just compensation? What factor is considered? The decree regarding the value declared
by assessor and value declared by the owner what ever is lower will be the basis of just compensation is declared
null and void because just compensation is a matter of judicial discretion. So what are the factors in determining just
compensation?

Diolola: Assessed value + consequential damages – Consequential benefits

JS: and the commissioner are required to submit what?

Diolola: report
JS: Yes. Because upon submitting the report by the commission it will help the court in determining the just
compensation. Okay this order of the court is likewise appealable. What wil happen if the decision of the lower court
granting the expropriation be reversed by appellate court?

Diolola: There is restoration plus payment of damages.

JS: What about if affirmed by appellate court?

Diolola: they will now enter the possession of property or if there is already an entry they will have the right to retain
the property.

JS: That winds up expropriation. Take note that in expropriation there can be multiple appeals. And the orders that
can be appealed are the order granting expropriation and the order granting just compensation.

Travieza Dennis! This rule on foreclosure of mortgage. Listen ha! Diba your taking credit transaction. This rule refers
to what kind of foreclosure?

Pastor: JUDICIAL FORCLOSURE.

JS: So we are talking here real estate mortgage and it will apply only to judicial foreclosure and extrajudicial
foreclosure is governed by credit transaction and governed by the provisions of republic act 3135. But anyway I will
give you more explanation. She is my student in UP and she is a good student 100% sure.

Now. So that you can resort to extrajudicial foreclosure what is the requirement?

What did atty. Mari tell you? The major requirement. The most important requirement?

You must specify in your stipulations that in case of non-payment or breach of condition extrajudicial foreclosure
shall be resorted to pursuant to RA 3135. Non inclusion in the stipulation you cannot resort to extrajudicial
foreclosure.

JS: Now. Okay. Itong real estate mortgage is just one of the remedy which can be resorted? What is the usual ground
so it can be resorted?

Pastor: Non payment of loan.

JS: is it only non-payment of the loan which will warrant extrajudicial or judicial foreclosure?

Is it always the case?

Pastor: Yes.

JS: Yes. Usually it is non-payment because it is a collateral for the loan. But there are instances where you can resort
to foreclosure if there is a violation of the condition of the real estate mortgage.

JS: These are options. Its either you can file claim for money or resort to foreclosure. What will happen daw if the
mortgagor creditor opted to file for collection of sum of money but unfortunately he was unsuccessful and then he
resorted to foreclosure? Is it allowed?

Pastor: No.
JS: Yes. It is not allowed because the filing of collection of sum of money means a waiver of your right to resort to
foreclosure. Take note of that. If you become a lawyer resort to foreclosure.

Clear?

You file a verified petition? Where?

Pastor: RTC.

JS: RTC of what city?

Pastor: RTC where the property is located.

JS: I love that! Mr. Travieza can still remember our discussion on venue.

JS: How about if the mortgage is located in several location or different city or municipality.

Pastor: You can file in any RTC where the property is situated.

JS: So you have an option where to file anywhere where the land is situated.

JS: what should be included. You have to aver the acts that constitute cause of action if you want to resort to judicial
foreclosure of real estate mortgage.

I’m taking on important matters. So who should be included as respondent?

Pastor: owners and those in actual possession and persons interested to the property.

JS: Is this foreclosure petition or complaint?

Pastor: complaint.

JS: are you sure? Diba we enumerated that when we started special civil actions. Why? Because there is a difference
like the name of the parties and etc. Take note nalang of that ha!

JS: Foreclosure of mortgage also allowed multiple appeals. Diba in expropriation it is the order granting expropriation
and order granting the just compensation. In judicial foreclosure what can be appealed? Just like expropriation 30
days to appeal there must always be record on appeal + payment of appeal fees. What can be appealed in judicial
foreclosure? What orders?

Pastor: Order of…….

JS: okay. It’s in the book of regalado tama ba? Mr. Josol tama ba? Ms. Varona?

And the first of course is? The order granting the foreclosure. What else?

Pastor. Order granting confirmation of sale.

JS: what else? The order of sale of deficiency.

Okay now! We presumed that after we comply with the proceeding. If the court grants the foreclosure what will
happen? What is the next step?
Pastor: property shall be sold to public auction.

JS: the property shall be sold to public auction and it will go to the highest bidder and if there is no bidder it will go
to mortgagee creditor. In case of non-payment ownership automatically transfer to the creditor? Is it a valid
stipulation?

Pastor: No.

JS: What do you call that? Pactum Commisorrium. It is an invalid stipulation that’s why there is a public auction.
Diba the confirmation come in last stage na yan. My next question is? Is there a legal redemption? Yes or No?

Pastor: N0

JS: What do we have in judicial foreclosure is?

Pastor:…….

JS: EQUITY of REDEMPTION. When there can be legal redemption and equity redemption? In case mortgage in bank
and quasi-banking institution.

Legal redemption is only allowed in extrajudicial foreclosure of mortgage and it is 1yr from registration of sale in the
registry of property where the property is located.

In judicial foreclosure it is Equity of redemption. Except if mortgage Bank and Quasi-banking institution and allowed
legal and equity of redemption.

When can the mortgagor debtor exercise the equity of redemption? Pactum commissorium and T-PO(Diri ak sure
hahahahaahha) are not valid stipulation. T-PO an stipulation that if the property will be sold at public auction it will
only be sold to a particular person.

Now. If you can answer Mr. travieza you will be exempted in the finals. But I only count 1-5. Where can the mortgagor
debtor exercise equity of redemption?

Travieza: It can be done before confirmation of certificate of sale.

JS: The question is there is a period. I will give you a choice. 90, 60, 120.

Pastor: 90.

JS: But within 120 it can be extended as long as it is done before the confirmation of certificate of sale. Question?
When will you commence counting the 90 to 120 day period?

I will allow you to read. I’m very kind. You know what teachers would be active practicing lawyers and judges.

Pastor: reeeeeeaaaaaaaaading………. (Section 2)

Thank you Mr. Travieza! Pastor.

Take note ha! Legal redemption 1 yr from date of registration of certificate of sale of the office of the registry of
deeds of where the property is located. And take note about the foreclosure of mortgage on banks and other quasi
banking it is allowed to have legal redemption and equity of redemption. So if he did not avail of equity of
redemption he can still avail legal redemption within the 1 yr period. Thank you Mr. travieza!s

CONTINUATION RULE 68…….

Rule 68: Foreclosure of Real Estate Mortgage

Foreclosure of Real Estate Mortgage

 Extrajudicial Foreclosure – must have a stipulation that in case of non payment, extrajudicial foreclosure of
mortgage must be resorted to otherwise only judicial foreclosure is allowed.
 Legal Redemption – only available in extrajudicial foreclosure of mortgage
 Equity of Redemption – available only in judicial foreclosure of mortgage except in the instances where the
law allows or grants both equity of and legal redemption in cases of loans made to Banks and Quasi Banking
Institutions
 The period for exercise of Equity of Redemption may be extended as long as it is done before the
confirmation of the sale, 90 – 120 days where he can pay off the amount plus interests.
 For the parties who should be included, when filing a petition for judicial foreclosure of mortgage, it must
include the 2nd mortgagee or the junior encumbrancer if there were subsequent mortgages made using the
same property.
 Foreclosure sale becomes automatic and does not require a motion to be filed in cases when the
mortgager-debtor cannot pay off the debt.
 However, after foreclosure sale is done in public auction, there is a need for the court to confirm the sale.
This order confirming the sale is an appealable order.
 Mortgagee-Creditor must file a motion to set hearing on his prayer to confirm the sale. There must be a
notice to the mortgagor-debtor to give him opportunity to question the foreclosure sale such as when the
proper procedure was not followed or the price was not adequate.
 If the amount of the proceeds of the sale is not sufficient to pay off the liability of the mortgagor-debtor,
recovery of deficiency judgment is allowed except if there is a third party involved who was the one who
secured the mortgage of the debtor and in case of a deceased mortgagor
 In foreclosure sale, it includes both real and personal.
 Where personal property is mortgaged and mortgagee-creditor opts the third of the three remedies that is
Demand that the buyer pay (a.k.a. specific performance), Cancel or rescind the sale ,Foreclose the mortgage
on the property bought he is precluded from recovering any deficiency judgment and any stipulation
between the parties in violation of that is considered null and void. This is known as the Recto Law!!
 After the equity of redemption has already expired and there was no redemption on the part of the
mortgagor-debtor under the law the sale which was confirmed by the court for which a final sale shall be
issued it shall be registered with the register of deeds of the city or province where the property is located
 Registration is important because it is the basis for the transfer of title, because after such a new title will
be issued in favour of the mortgagee-creditor and the previous title will be cancelled.

Rule 69: Partition

Partition
  One common feature between expropriation and partition is that appointment of commissioners is
mandatory
 A case for partition is filed where any of the property or portion thereof is situated (it’s a real action)
 This also allows multiple appeals. Orders that may be appealed are (very noisy, indistinct, diri naiintindihan,
I am so sorry) the order confirming partition after submission of the report of the commissioners ,
ownership issue already passed upon by the court
 After trial the parties may agree to make the partition among themselves. The parties are encouraged by
the court to partition among themselves
 If they do not agree among themselves the court now will appoint not more than three commissioners who
will make the partition, visit and conduct an ocular inspection of the property subject to partition and then
submit a report. After submission of report, the clerk of court shall serve copies of the report to the
interested parties with notice that they are allowed ten (10) days within which to file objections
 After the lapse of the 10 day period or even before expiration but after the parties filed their objections the
court may confirm the report and render judgment, reject it or assign new commissioners
 After the said confirmation of the court, it may render judgment based on said report and the actual
partition shall be registered before the register of deeds in the province or city where it is located.

Rule 70 UNLAWFUL DETAINER (UD) & FORCIBLE ENTRY (FE)

Q:Forcible entry how committed?

A:when a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth,

Q:unlawful detainer how committed?

A:when a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully
withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or
implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person.

Q: what is the Principal issue?

A: mere physical possession

Q:can the first level courts treat an issue of ownership

A:yes, in cases of UD & FE it can treat an issue of ownership as an incident but only for the purpose of making a
decision on possession. Ex. In UD and FE the plaintiff may present in court his tittle to the property to prove that he
was also in physical possession of the property.

Q: prescriptive period?
A: within 1year

Q:when shall the prescriptive period commence?

A: In forcible entry, the one-year period is generally counted from the date of actual entry on the land; OR from the
knowledge of FISTS.
in unlawful detainer, from the date of last demand.
The demand is considered jurisdictional in nature and must be alleged in the complaint
Requirements as part of the demand
1. Failure of the defendant to pay or comply with the condition of the lease
2. Failure to vacate
Not alleging this requirements in the demand, the court can dismiss the case of UD.
Q:What are the exceptions where demand is not required?
A:1) where the purpose of the action is to terminate the lease by reason of the expiry of its term and is not for failure
to pay rentals or comply with the terms of the lease contract (De Santos vs. Vivas, 96 Phil. 538);
(2) when the purpose of the suit is not for ejectment but for the enforcement of the terms of the contract (Guanson
vs. Ban, 77 Phil. 7); or
(3) when the defendant is not a tenant but a mere intruder.

Q:In UD do you have to prove that you are in prior possession?

A: NO

Q: in FE?
A: YES must prove the prior possession of the property.

Note: UD CAN ALSO BE BASED ON THE ENTRY OF THE DEFENDANT BY TOLERANCE

Requisites ( CANLAS CASE)

(1) initially, possession of property by the defendant was by contract with or by tolerance of the plaintiff;

(2) eventually, such possession became illegal upon notice by plaintiff to defendant of the termination of the latter's
right of possession;

(3) thereafter, the defendant remained in possession of the property and deprived the plaintiff of the enjoyment
thereof; and

(4) within one year from the last demand on defendant to vacate the property, the plaintiff instituted the complaint
for ejectment.

Period to pay rentals

1. Parcel of land- 5 days to vacate 2. Buildings- 15 days to vacate

UD and FE governed by the rules on summary procedure.

Q:The Court, aside from awarding the rentals, attorney's fees, also awarded the moral and exemplary damages is
the court correct?

A: no, UD & FE cases can only grant back rentals and attorney's fees.

Q: will the appeal prevent/stay the execution?

A: if it is immediately executory, but you want to stay the execution because of your appeal it must follow the
requisites 1. Post a supersidious bond to the RTC 2. Must also pay the rental monthly.

Q: how much is the supersidious bond?

A: must corresponds to the rental.

Q: you lost again in the RTC what will you do? What is your remedy?

A: file a petition for certiorari under rule 42

Q: upon motion of the plaintiff in spite of the pendency of the petition for certiorari under rule 42 the MTC granted
the execution and the defendant objected by saying "I have a pending petition for review and I posted a supersidious
bond, I have paid the rentals monthly, is the judge correct for granting the motion for execution?

A: YES, because it is only when you apply in the RTC that the bond is applicable.

Q: in FE and UD the plaintiff wants immediate possession of the property in question while the case is pending, what
must the plaintiff do?

A:file a motion to issue a writ of preliminary mandatory injunction.

Rule 71 CONTEMPT
Direct Contempt versus Indirect Contempt

Criminal Contempt versus Civil Contempt

Principle which guides the court from determining whether or not one is guilty of contempt:
Contempt should be exercised in the preservative principle.

Is the power to declare a person in contempt inherent before the court?

Yes. However, the same is not true in quasi-judicial agencies or bodies. They can only exercise such power if the law creating that
particular quasi-judicial agency or body grants them to punish one in contempt.

Is charge necessary in direct contempt?

No.

Indirect contempt?
Indirect contempt needs a charge filed against a person as well as a hearing, unless it is the court itself based it in an order. There are
two modes of commencing a proceeding for indirect contempt:
1. if the court itself issues an order; and
2. if it is based on a verified petition which may be filed by any party against a person.
The requirement of the law is that there must be a hearing to comply with due process.

Where should a case for direct contempt be filed?

Before the court where the contumacious act was committed.

Indirect contempt?
If committed against the first level court, (1) before the first level court where the contumacious act was committed subject to appeal to
the RTC; or (2) directly to the RTC.
If committed against the RTC, in the same RTC. If in the nature of a criminal proceeding, it is appealable. If not, then it is not appealable.

Committed against a quasi-judicial agency or body?

Before the RTC where the quasi-judicial agency or body is under.

Grounds for Indirect Contempt

Pleadings which contain contemptuous allegations, direct or indirect contempt?

Direct contempt if pleading is submitted to the court and attacked the integrity of the judge where the pleading is submitted.
Indirect contempt if pleading is submitted to the court and attacked the integrity of another judge.
Two lawyers boxed each other only after a recess has been declared by the court, direct or indirect contempt?
Indirect contempt because there was a recess. But if they boxed each other while the trial is going on, direct contempt.

Writ of execution issued by the court to the sheriff commanding him to execute decision of the court and there was refusal on the
part of the losing party to comply with the WOE issued by the court, direct or indirect contempt?
No indirect contempt on the part of the losing party because no order has been issued to them and the order has been issued to the
sheriff.

Penalty in direct contempt

Fine, imprisonment or both.

Is the decision of the court in direct contempt appealable?

No. The remedy is certiorari or prohibition. But prohibition is the better remedy.

Does the filing of prohibition or certiorari stay the decision of the court?
No. To stay the decision of the court, the remedy is to post a bond in an amount to be fixed by the court to answer for damages if it turns
out that the petition for certiorari is unmeritorious.