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This is followed by the enumeration of certain things which cannot be the subject matter of attachment. For example, a mere right to sue for damages or any right of personal service or an expectancy of succession by survivorship, cannot be the subject matter of attachment.

6. In this particular case, the right to be attached is the right that arose from an agreement for the sale of certain shares for an agreed consideration. It is an actionable claim and/or a beneficial interest in movable property which is itself to be considered as movable property and is assignable and transferable. There is no reason why such a right cannot be the subject matter of an attachment. What is argued is that the contract is really not an executed but an executory contract and there are mutual rights and obligations. It is even argued that the payment of the money is a contingency and the contract is a contingent contract. It is argued that such a right is neither assignable nor can be the subject matter of attachment. In order to consider this point it will be necessary to examine a number of authorities which have been cited before us.

15. Applying the principles laid down in the cases above mentioned, it clearly appears that the option to purchase the shares and the right to purchase the shares for an agreed consideration, is a right to property under a completed contract, being property which is both transferable and assignable. It is attachable under the provisions of the Code of Civil Procedure. One of the arguments that has been advanced is that the right is neither assignable nor transferable because (i) it is an executory contract and (ii) that there are mutual rights and obligations. Reference has been made to the comments of Mr. Mulla under Section 37 of his treatise on the Indian Contract Act. The learned author has referred to an English decision Tolhurst v. Associated Cement Manufacturers, (1902) 2 KB 660. In that case Collins M. R. says as follows:

16. It is argued that in the present case the contract was an executory contract and was non-assignable, because the payment of consideration was a burden which cannot be transferred. In the above-mentioned case, the contract was between the owner of certain chalk quarries and a Cement Company, by which the owner agreed that he would, for fifty years, supply to the company and the company should take and buy from him, at least 750 tons of chalk per week at a certain price and so much more as the company should require. The Cement Company assigned the contract and sold its undertaking and went into voluntary liquidation. Collins M. R. held that this was an assignment of a burden and no suit could be brought without making the original parties to the contract as parties to the suit. This judgment was not, however, upheld by the House of Lords. It was held in Tolhurst v. Associated Portland Cement Manufacturers, (1903) AC 414 that the assignment was valid and that the assignee could enforce the benefit of the contract by action without joining all the parties to the original contract. The principle that the burden of a contract cannot be transferred without the consent of all the parties to the original contract is good law. Also it is good law that a contract which involves personal considerations cannot be transferred. The present case however does not come under any such category. Here, the contract was a completed contract for which there was consideration. The mere fact that a part of the consideration has yet to be paid does not bring it within the mischief of the principles stated above. If that were so, no contract or benefit under a contract could be assigned or transferred unless the consideration had been fully paid. That is not the law. Reference may be made to a decision of Sale J., of this Court Jaffar Moher Ali v. Budge Budge Jute Mills Co. Ltd., ILR 33 Cal 702. The facts In that case were as follows: On the 20th July, 1905, the defendant company entered into a contract with one Cassim Karim for the sale to him of certain gunny-bags to be delivered in monthly instalments in the months of January to June 1906. The contract contained certain buyer's options as to quality and packing of which the latter was declarable not later than the first day of the month previous to that in which delivery was due. There was no specfic clause in the contract making it assignable. By an indenture of assignment dated the 16th August 1905 Cassim Karim, in consideration of a sum of Rs. 100, assigned to the plaintiff the said contract and all the benefits and advantages thereunder. On the 19th August, 1905, notice of the assignment was given to the defendant company who refused to accept the notice or to recognise the assignee. The assignee thereupon declared his option with repaid to the instalment due in January 1906 and sent shipping instructions which were ignored. He then sued for Rs. 3,000 us damages for non-delivery of the January instalment. The main contention of the defendant company was that the contract was not assignable. Sale, J., said as follows: