The principle of merger applies to decisions rendered under Article 226 of the Constitution, meaning earlier tribunal orders do not stand distinct when affirmed by higher courts.

1The 3rd respondent in O.P. No. 1387 of 1980 has come up in appeal against the judgment of the learned single Judge rendered in the Original Petition. An award came to be made under S.69 and 70 of the Kerala Cooperative Societies Act, 1969. That award was challenged in appeal before the Kerala Cooperative Tribunal. The Tribunal having dismissed that appeal the said decision of the Tribunal was challenged by respondents 1 and 2 in OP. No. 1635 of 1977. That Original Petition came to be dismissed on 21-7-1977. Respondents 1 and 2 thereafter approached the Kerala Cooperative Tribunal, invoking its power of review under S.85 of the Act. The Tribunal declined to entertain the review petition having regard to the fact that its earlier decision on merits dismissing the appeal was challenged by them under Art.226 of the Constitution in OP. No. 1635 of 1977 and the said petition was dismissed by the High Court. The decision of the Tribunal was challenged by respondents 1 and 2 in OP. No. 1387 of 1980. The learned single Judge has by judgment dated 10-12-1980 allowed the petition, quashed the order of the Tribunal and remitted the review petition to the Tribunal for being disposed of on merits and according to law. It is the decision of the learned single Judge that is challenged in this appeal.

2The principal contention of the learned counsel for the appellant in this appeal is that the review petition filed by the Ist respondent was not maintainable and that therefore the learned single Judge was not right in directing the Tribunal to dispose of the review petition on merits. A similar contention though urged before the learned single Judge did not find favour with him. The learned single Judge has come to the conclusion that the effect of dismissal of OP. No. 1635 of 1977 is that this Court refused to call for the records of the inferior Court and to quash the same. It is further held that it cannot therefore be said that this Court confirmed any of the findings of fact recorded by the Tribunal, The clear effect of the judgment of the learned single Judge is to take the view that this Court did not go into the merits of the case and virtually declined to interfere with the order of the Tribunal and therefore the order of the Tribunal did not stand merged in the final order of this Court in OP. No. 1635 of 1977.

3Before examining the rival contention it is better to consider as to what actually happened when OP. No. 1635 of 1977 was disposed of by this Court. It is not disputed that the said petition was not dismissed in limine. After notice was issued, the contesting respondents entered appearance and after hearing the parties final decision was rendered in the case. On a perusal of the judgment in OP. No. 1635 of 1977, it is not possible to agree with the view of the learned single Judge taken in the judgment under appeal that this Court declined to call for the records of the Tribunal and to quash the same. The relevant discussion in the said judgment Ext. P4 may for the sake of convenience be extracted as follows:
"Ext. P2 award confirmed in appeal by the Kerala Cooperative Appellate Tribunal by Ext. P3 judgment calls for no interference in this proceedings. The question for decision was whether the petitioners herein, who were respectively the erstwhile Secretary of the Society and his guarantor were liable for amounts claimed as due to the Cooperative Society. The Secretary had in Ext. P9 statement given to the Society undertaking to pay such amount as was found due on audit. It was the amount that was so found due on audit that was claimed. The arbitrator as well as the Appellate Tribunal have considered the evidence in the case and found that the petitioners are liable. This finding based on appreciation of evidence does not call for interference in these proceedings. Hence the petition is dismissed with costs."
On a bare reading of the judgment it becomes clear that this is not a case in which the learned single Judge declined to