A statutory charge, particularly when it is a first charge, cannot be severed from the land and so it remains attached to the land and cannot attach to the price of pre-emption deposited in Court.

Mudholkar, J—This is a second appeal by one of the Defendants to a suit for money.

2. The relevant facts are these: The Plaintiff in execution of a decree for money, which he held against Defendant 3 Damodar, had half of absolute occupancy fields Nos. 46 and 48 attached and sold. He purchased the land himself. That was on 19-11-1934. Eventually, the landlord, Defendant 1 Tulsiram, pre-empted the purchase by depositing Rs. 750/- in the appropriate Revenue Court on 13-12-1939.

3. Prior to the execution sale, Tulsiram had obtained: decrees for Rs. 275/11/6 and Rs. 82/6/- against Damodar, his brother Harishankar (Defendant 4) and one Sheonarayan (Defendant 2) for arrears of rent of the whole of Khasra Nos. 46 and 43. It may be mentioned that these, fields stood in the names of all these three persons though, according to the Plaintiff Damodar was the only person who held beneficial interest in them.

4. In the year 1937, that is, after the execution sale, Tulsiram sued Defendants 2 to 4 for arrears of rent which had fallen due on 1-5-1935, 1-5-1936 and 1-5-1937 and obtained a decree against them. These Defendants contested their liability and the matter came up to this Court. Here the decree was set aside and the suit was remanded. After remand, the Plaintiff was joined as a Defendant to the suit as he had obtained symbolical possession before 1-5-1935. The suit was, however, dismissed against him as being barred by time but was decreed against Defendants 2 to 4.

5. Soon after Tulsiram deposited the price of pre-emption, he made an' application to the Court which had passed the rent decree to attach the pre-emption price which he had deposited in the revenue Court. It allowed the application and eventually on 2-5-1940 Tulsiram was paid Rs. 509/-out of the amount of Rs. 750/- held in revenue deposit. The Plaintiff learnt of this on 10-12-1940 after he had made an application to the revenue Court for withdrawal of the price of pre-emption.

6. It is for this reason that he instituted the suit out of which this second appeal arises. The trial Court dismissed his suit in its entirety but the lower appellate Court decreed it to the extent of Rs. 350/8/1/4 against Defendant 1 Tulsiram and to the extent of Rs. 158/7/ 3/4 against Defendants 2 to 4 The reason for decreeing the claim against Tulsiram for Rs. 350/8/1/4 only was that the rental arrears were in respect of the whole of Khasra Nos. 46 and 48 and that as Tulsiram had preempted them, he could not throw the entire burden on the Plaintiff. It also held that Defendant 1 realised Rs. 158/7/- from the Plaintiff, which amount they themselves were liable to pay, were bound to restitute the benefit.

7. Tulsiram alone appealed while Defendants 2 to 4 are content with the decree passed against them. The Plaintiff has not filed any cross-appeal or cross-objection against the decree of the lower appellate Court.

8. The point taken on behalf of Tulsiram is that the Plaintiff having eventually been made a party to the suit, his proper remedy was to raise an objection in execution and not to file a separate suit. It is difficult to appreciate how the Plaintiff could at all have raised the objection in execution except under Order 21, Rule 58, Code of Civil Procedure, as he was not a party to any of the suits on the date on which Defendant' 1 attached the amount or on the date on which Defendant 1 withdrew it. Even on the date on which he came to know of the withdrawal of the amount by Defendant 1, he was not a party to any of the rent suits. Whether to avail of the provisions of Order 21, Rule 58 or not is within the discretion of the party affected.

9. True, the Plaintiff was eventually joined as a Defendant to the rent suit of 1937 but that was on 28-8-1941, fifteen months after the decree, which had been passed in a suit to which be was not a party, was executed. Since he was not a party to the suit when the amount was realised by Defendant 1, he could not raise an objection in execution, under