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1997 Rules on Civil Procedure

2001 Edition <draft copy. pls. check for errors>

Rule 38 - Relief From Judgments,


Orders, or Other Proceedings

Rule 38

RELIEF FROM JUDGMENTS, ORDERS,


OR OTHER PROCEEDINGS
Section 1. Petition for relief from judgment, order, or other proceedings.
When a judgment or final order is entered, or any other proceeding is thereafter
taken against a party in any court through fraud, accident, mistake, or
excusable negligence, he may file a petition in such court and in the same case
praying that the judgment, order or proceeding be set aside. (2a)

Rule 38 is known as the remedy of petition for relief from judgment or final order. The
grounds cited here are actually the same as the grounds for new trial FAME. We are
meeting FAME for the third time. It seems to be a ground that keeps on going back. First in
Default, then New Trial, and now a ground for petition for Relief from Judgment.
Q: What are the different remedies available to a defaulted defendant granted by the
rules?
A: The following:
0 Upon service of the order of default but before judgment upon default is
rendered under Rule 9 you can file a motion to set aside the order of default on
the ground that his failure to file answer was because of FAME;
1 If there is already a default judgment, the correct procedure is to file a motion
for new trial under Rule 37 on the ground of FAME within the period to appeal,
meaning, before judgment becomes final and executory;
2 If the judgment is already final and executory, the remedy is to file a petition
for relief from judgment under Rule 38 on the ground of FAME.
So if you are a passenger and you want to ride on the bus, Rule 9 is first trip, Rule 37 is
second trip, Rule 38 is last trip.
Are those the only remedy? For bar purposes pwede na! But if gusto mo ng mas
maganda, marami pa. [abangan! See discussions under Rule 47]
Q: Distinguish between relief from judgment under Rule 38 and new trial under Rule 37.
A: Rule 37 is substantially similar to Rule 38, the only difference being that the remedy
is called Motion for New Trial if filed before the judgment or final order has become final
and executory, and Petition for Relief if filed thereafter but within the period prescribed in
Section 3, Rule 38.
And take note that only FAME could be the ground for Rule 38. There is no newly
discovered evidence under Rule 38. Newly discovered evidence is not a ground for petition
for relief from judgment. Newly discovered evidence is available in Rule 37 but not in Rule
38.
Q: In what court can you file a petition for relief from judgment?
A: In such court and in the same case. Meaning, in the very court where you lost and
in the same case number. So, para ka na ring nag-file ng motion for new trial because
motion for new trial is filed before the same court and in the same case.
Under the OLD RULES, when you want to file a petition for relief from the judgment of
the RTC, you file your petition for relief in the same RTC and in the same case. And if you
want to file a petition for relief from judgement of the MTC, you file it in the RTC like an
appeal. The RTC will be the one to grant the relief from the judgment of the MTC. The MTC
has no power to set aside its own judgment. It can only be done by the RTC. But the RTC
has the power to set aside its own judgment just like a motion for new trial.

Lakas Atenista
Ateneo de Davao University College of Law

97

1997 Rules on Civil Procedure


2001 Edition <draft copy. pls. check for errors>

Rule 38 - Relief From Judgments,


Orders, or Other Proceedings

But NOW, under Section 1, you can file a petition for relief from judgment in ANY
COURT on the ground of FAME, IN SUCH COURT and in the same case. So, if you want to
file a petition for relief from judgment of the MTC, you should file it in the same MTC court.
Now, MTC has authority to entertain petition for relief from judgment unlike the previous
rule. That is a major change.
Q: Can a petition for relief from judgment be filed in the CA?
A: YES because of in any court.
Can you file a petition for relief not from a judgment but from an order? Section 2:
Sec. 2. Petition for relief from denial of appeal. When a judgment or final
order is rendered by any court in a case, and a party thereto, by fraud,
accident, mistake, or excusable negligence, has been prevented from taking an
appeal, he may file a petition in such court and in the same case praying that
the appeal be given due course. (1a)

In most cases, or 95% of petition for relief, a party files a petition for relief from the
judgment rendered against him. Actually that is not true. The remedy of petition for relief
is not only limited to judgments but the law says orders, or other proceedings. That is
very broad.
EXAMPLE: I lost the case and I filed an appeal and the appeal was beyond 15 days. So,
there will be an order denying my appeal because my appeal should be within 15 days.
Q: And suppose such order prevented me from taking an appeal because of FAME, can I
file a petition for relief?
A: Yes, not from the judgment but from the order denying my appeal on the ground of
FAME. And the court will grant me relief by allowing me to appeal. So there, I am not
questioning the judgment but I am only questioning the order not allowing me to appeal.
But as I said, in most cases, petition for relief are based on Section 1 rather than
Section 2. Bihira yung petition for relief from the order denying the appeal.
Is there a deadline in filing a petition for relief from judgment? YES. Section 3:
Sec. 3. Time for filing petition; contents and verification. A petition
provided for in either of the preceding sections of this Rule must be verified,
filed within sixty (60) days after the petitioner learns of the judgment, final
order, or other proceeding to be set aside, and not more than six (6) months
after such judgment or final order was entered, or such proceeding was taken;
and must be accompanied with affidavits showing the fraud, accident, mistake, or
excusable negligence relied upon, and the facts constituting the petitioner's
good and substantial cause of action or defense, as the case may be. (3)

Q: When you file a petition for relief from judgment, or final order, what are the formal
requirements?
A: The formal requirements are:
0 The petition must be verified;
1 The petition for relief must be accompanied with affidavits showing the FAME
relied upon and the facts constituting the petitioners good and substantial case
of action or defense as the case may be.
Q: Now, does that requirement sound familiar again, that there must be an affidavit
showing the fame and the petitioners substantial cause of action or defense?
A: Yes, that is the requirement under the motion for new trial, affidavit of merits.
Therefore, AFFIDAVIT OF MERITS which is a requirement in Rule 37 is also a requirement in
Rule 38. That is the identical feature of new trial of fame and petition for relief.
Q: What will happen if a party files a petition for relief without any affidavit of merits, or
with a defective affidavit?
A: The defect is FATAL and the petition will be denied outright because of lack of
affidavit merits. It is the affidavit of merits which serves as the jurisdictional basis for the

Lakas Atenista
Ateneo de Davao University College of Law

98

1997 Rules on Civil Procedure


2001 Edition <draft copy. pls. check for errors>

Rule 38 - Relief From Judgments,


Orders, or Other Proceedings

court to entertain a petition for relief. (Fernandez vs. Tan Tiong Tick, L-15877, April 28,
1961)
Q: When do you file a petition for relief?
A: Once the judgment complained of has become final and executory because the
remedy of new trial is lost. But it does not mean that you can file your petition for relief
anytime. There is also a deadline.
Q: What is the DEADLINE?
A: Under Section 3, the petition must be filed within:
0 SIXTY (60) DAYS from the time the petitioner learns of the judgment, order, or
other proceedings to be set aside, AND
1 Not more than SIX (6) MONTHS after such judgment or final order was
entered, or such proceeding was taken.
Q: What is the date of entry of judgment or final order?
A: It is the date of finality of judgment or final order (Rule 36, Section 2). So, the date of
entry is deemed to be the date of finality.
So there are two (2) periods: 60 days and 6 months; and BOTH periods must be
complied with (Dirige vs. Biranya, L-22033, July 30, 1966). Otherwise, if you fail to comply
with the two periods the petition for relief will be denied for being filed out of time.
PROBLEM: There was a judgment rendered against me in June 1997 and it became final
and there was entry of final judgment in June 1997, meaning talo na ako last year pa. But
I learned about it only last week or seven days ago. Today is February 1998. So I asked my
lawyer to file a petition for relief this week.
Q: Is the petition filed on time?
A: NO. It is filed out of time. It is true that I only learned about it a week ago. But
definitely, the filing is beyond 6 months from the date of its entry which is June 1997. You
complied with the first period but you did not comply with second period. Both periods
must be complied.
PROBLEM: The judgment was entered against me last December 1997, and there was
entry of final judgment in December 1997. I learned about it last December also; and now
March, 1998, I will file a petition for relief from judgment.
Q: Can I still file the petition for relief?
A: No more. Although it is within 6 months (December to March is only 3 months) from
date of entry BUT definitely, between December to March is more than 60 days. So the
petition can no longer be filed. That is how you apply the two periods. Both periods must
be complied.
Q: Is the period for filing a petition for relief extendible?
A: The remedy allowed by Rule 38 is merely an act of grace or benevolence intended to
afford a litigant a penultimate opportunity to protect his interest. Considering the nature
of such relief and of the purpose behind it, the periods fixed by said rule are NONEXTENDIBLE and is never interrupted; nor can it be subject to any condition or
contingency because it is itself devised to meet a condition or contingency. (Smith, Bell &
Co. vs. Phil. Milling Co., 57 O.G. 2701, April 10, 1961; Quijano vs. Tameta, L-16473, April
20, 1961)
Well, of course, petition for relief according to SC, is penultimate remedy given by the
law to a victim of FAME. Because, if you are a victim of FAME, you lose the case because
of that reason. Somehow the law would like to help you lalo na pagna-default ka. O.K., you
have Rule 9, file ka nang motion to lift order of default. Hindi ako nakahabol eh, mayjudgment na. O sige, Rule 38 petition for relief. But paglumampas ka dyan, sorry na
lang.

Lakas Atenista
Ateneo de Davao University College of Law

99

1997 Rules on Civil Procedure


2001 Edition <draft copy. pls. check for errors>

Rule 38 - Relief From Judgments,


Orders, or Other Proceedings

Meaning, the law cannot help you forever. The law can only help you up to a certain
period. If you still do not do anything about it, pasensiya ka na.
Sec. 4. Order to file an answer. If the petition is sufficient in form and
substance to justify relief, the court in which it is filed, shall issue an
order requiring the adverse parties to answer the same within fifteen (15) days
from the receipt thereof. The order shall be served in such manner as the court
may direct, together with copies of the petition and the accompanying
affidavits. (4a)

You file a petition for relief, the court will issue an order requiring the other party to
answer. It is like a complaint all over again where you are given 15 days to answer.
Meaning sagutin mo Would you agree that your opponent is a victim of FAME? In other
words, do you agree or disagree? yan ang sagutin mo. Do you agree that he has
meritorious cause of action (or defense)? Meaning, you are given the right to oppose the
petition for relief.
Sec. 5. Preliminary injunction pending proceedings. The court in which the
petition is filed, may grant such preliminary injunction as may be necessary for
the preservation of the rights of the parties, upon the filing by the petitioner
of a bond in favor of the adverse party all damages and costs that may be
awarded to him by reason of issuance of such injunction or the other proceedings
following the petition; but such injunction shall not operate to discharge or
extinguish any lien which the adverse party may have acquired upon the property
of the petitioner. (5a)

Preliminary injunction actually is a type of provisional remedy which is governed by


Rule 58. Injunction is to stop ba, to enjoin somebody or stop the court from doing an act.
That is the essence of injunction.
EXAMPLE: I lost in a case. The judgment became final and executory because I did not
make an appeal. However, I filed a petition for relief. In the meantime, my opponent is
asking the court to execute the decision which is his right because the judgment is already
final and executory. In other words, I am questioning the judgment of the court while siya
naman, he is asking the court to enforce the judgment.
Q: Now, what is my remedy to stop the enforcement of the judgment?
A: Under Section 5, I can ask the court to issue a writ of preliminary injunction to stop
the enforcement of the judgment. But I have to put up a BOND conditioned that in the
event that my petition for relief is not meritorious, I will pay for all the damages that the
other party will incur because of the delay in the execution.
Sec. 6. Proceedings after answer is filed. After the filing of the answer or
the expiration of the period therefor, the court shall hear the petition and if
after such hearing, it finds that the allegations thereof are not true, the
petition shall be dismissed; but if it finds said allegations to be true, it
shall set aside the judgment or final order or other proceedings complained of
upon such terms as may be just. Thereafter the case shall stand as if such
judgment, final order or other proceeding had never been rendered, issued or
taken. The court shall then proceed to hear and determine the case as if a
timely motion for a new trial or reconsideration had been granted by it. (6a)

BAR QUESTION: When a petition for relief from judgment is filed, what are the hearings
that will be conducted by the court?
A: In proceedings for relief from judgment, there may be two (2) hearings, to wit:
0 a hearing to determine whether the judgment or order complained of should
be set aside, and
1 if the decision thereon is in the affirmative, a hearing on the merits of the
principal case.

Lakas Atenista
Ateneo de Davao University College of Law

100

1997 Rules on Civil Procedure


2001 Edition <draft copy. pls. check for errors>

Rule 38 - Relief From Judgments,


Orders, or Other Proceedings

So, the FIRST HEARING is to determine whether the petition should be granted or not
is the petition meritorious or not? Was there FAME? Is there affidavit of merit? Is the
affidavit proper? Is the petition filed within the period allowed by the law or not? Now, if
the petition is denied that is the end of the story. Wala na.
Now, if the petition for relief is granted, the judgment will be set aside as if it never
existed. Then we will now try the case all over again as if a motion for new trial has been
filed. That is the second hearing. The SECOND HEARING is the trial on the merits or a trial
de novo.
Now, somebody was commenting, Ito bang petition for relief parang appeal din? Is
this similar to appeal? The answer is NO. In the first place, there is no appeal here. Kaya
nga the judgment has become final and executory because there was no appeal. Now, in
an appeal, for example: Natalo ka sa kaso. When you appeal and you win, the decision
will be overturned. From losing, you become the winner. That is the effect of appeal.
But in petition for relief, you are not asking the court to change its decision. When a
petition for relief from judgment is granted, the decision against you will be set aside as if
it was never rendered and we will try the case all over again. In a petition for relief, the
court has no power to change its decision because it has already become final and
executory. But its power under Rule 38 is to set it aside as if it was never rendered and
conduct a new trial as if a motion for new trial has been filed. So please do not confuse
Rule 38 with the remedy of appeal.
Sec. 7. Procedure where the denial of an appeal is set aside. Where the
denial of an appeal is set aside, the lower court shall be required to give due
course to the appeal and to elevate the record of the appealed case as if a
timely and proper appeal had been made. (7a)

This is a continuation of Section 2 what can be questioned in Rule 38 is not only a


judgment but also an order, such as an order denying an appeal.
Q: Can I file a petition for relief from the denial of an appeal?
A: YES.
Q: And if my petition for relief from the order denying the appeal is granted, what will
happen?
A: According to Section 7, the court will now grant the appeal and allow the appeal to
proceed as if it was filed on time. Meaning, the judgment will not be set aside but I will be
given the right to appeal if the failure to file an appeal as due to FAME.
-oOo-

Lakas Atenista
Ateneo de Davao University College of Law

101

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