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:

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;

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;

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.
 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:
The petition must be verified;
The petition for relief must be accompanied with affidavits showing the FAME relied upon and the
facts constituting the petitioner’s 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
petitioner’s 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 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:

SIXTY (60) DAYS from the time the petitioner learns of the judgment, order, or other proceedings to
be set aside, AND
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 NON-EXTENDIBLE 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, may-judgment na.” O sige, Rule 38 – petition for relief. But paglumampas
ka dyan, sorry na lang.

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:

a hearing to determine whether the judgment or order complained of should be set aside, and
if the decision thereon is in the affirmative, a hearing on the merits of the principal case.

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-

1997 Rules on Civil Procedure Rule 38 - Relief From Judgments,

2001 Edition <draft copy. pls. check for Orders, or Other Proceedings
errors>

PAGE
PAGE 101
Lakas Atenista
Ateneo de Davao University College of Law