[ G.R. No. L-3106, December 29, 1955 ]
FILOMENO O. GANA, MARIA PAZ GANA, BELEN GANA, JOSE G. GANA, FILOMENA GANA, AND TELESFORO L. GANA, FOR HIMSELF AND AS GUARDIAN OF THE MINOR BENJAMIN GANA, PETITIONERS, VS. HONORABLE GAVINO S. ABAYA, JUDGE OF THE COURT OF FIRST INSTANCE OF RIZAL, CALOOCAN BRANCH, AND MARIA
LUISA P. VDA. DE GANA, RESPONDENTS.
D E C I S I O N
Claiming that the respondent Judge acted without or exceeded his jurisdiction in issuing the last order of 8 July 1949, because the petition for relief from the order of default was filed beyond the period of six months from the issuance of such order pursuant to section 3, Rule 38, the petitioners pray for a writ of certiorari with preliminary injunction. On 28 July 1949, a writ of preliminary injunction was issued by this Court.
The hearing of this case was delayed due to the agreement of the parties not to set the case for hearing until further move by either of them, for negotiation was being undertaken to settle the case amicably. The petition was heard on 29 April 1955.
On 14 February 1948 the respondent Gana, defendant in the action brought in the respondent court, was adjudged in default. On 31 August 1948, or six months and seventeen days after the order of default had been entered, she filed a petition for relief from such order. A petition to set aside a judgment, order, or other proceedings must be filed within 60 days after the petitioner learns of such, judgment, order or proceeding to be set aside, and not more than six months after such judgment or order had been entered, or such proceeding had been taken. These periods are not extendible. Her petition for relief from the order of default should have been denied, because although it was filed within sixty days after the respondent had learned of the order, as claimed by her, still it was beyond the six-month period provided for in the rule. The first period of six days is subject to the six-month period provided for in the rule, so that even if the petition for relief be filed within six days after he or she had learned of the judgment, order, or proceeding, if it is filed beyond, the period of six months after entry of such judgment, order, or proceeding, the relief provided for in Rule 38 is no longer available.
The writ prayed for is granted. The orders of 8 and 16 July 1949 entered by the respondent court are set aside and the writ of preliminary injunction heretofore issued is made final.
Paras, C. J., Bengzon, Reyes, A., Jugo, Bautista Angelo, Labrador, and Concepcion, JJ., concur.
 Joint Motion of 9 January 1950; Resolution of 11. January 1950.
 Resolution of 29 April 1955.
 Section 3, Rule 38.
 Isaac vs. Mendoza, 89 Phil., 279.
 Palomares vs. Jimenez, 90 Phil., 773; Rafanan vs. Rafanan, supra, p. 162; Santos vs. Manila Electric Co., G. R. No. L-7735, 29 December 1955.