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

2001 Edition <draft copy. pls. check for errors> 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 97
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 38 - Relief From Judgments,
2001 Edition <draft copy. pls. check for errors> 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 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)
Lakas Atenista 98
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 38 - Relief From Judgments,
2001 Edition <draft copy. pls. check for errors> Orders, or Other Proceedings

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 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
Lakas Atenista 99
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 38 - Relief From Judgments,
2001 Edition <draft copy. pls. check for errors> Orders, or Other Proceedings

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.

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.
Lakas Atenista 100
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 38 - Relief From Judgments,
2001 Edition <draft copy. pls. check for errors> Orders, or Other Proceedings

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 101


Ateneo de Davao University College of Law

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