Point of law : Section 107 C.P.C. r/w Order 41 Rule 33 C.P.C. provides for the powers of the appellate court according to which, in exercise of such powers, the appellate court may, pass any decree and make any order which ought to have been passed or made.

JUDGMENT :

1. Heard Sri Prashant Chandra, learned Senior Counsel, assisted by Ms. Mahima Pahwa, learned counsel for the appellant.

2. This appeal has been filed under Section 47 of the Guardians and Wards Act, 1890 (hereinafter referred to as ‘the Act, 1890) challenging the judgment and order dated 09.09.2021 passed by learned Additional District and Sessions Judge/Special Court, Prevention of Corruption Act, court no. 2, Lucknow in Misc. Case No. 529 of 2021 (Nirali Dixit vs. State of U.P. and Ors.) whereby appellant’s application B-3, was rejected as not maintainable.

3. The appellant is widow of Aditya Singh, the elder brother of Aryan Singh (minor)- respondent no. 2.

4. Misc. Civil Case No. 516 of 2020; CNR No. UPLKO10092532020 was filed by Aditya Singh, for his appointment as Guardian of the Minor under Section 7 of the Guardians and Wards Act, 1890 on 28.09.2020, upon the death of the parents of the minor, which was allowed vide judgment and order dated 15.12.2020, appointing Aditya Singh to be the Guardian of Aryan Singh (minor).

5. Aditya Singh also died (suicide) on 09.08.2021.

6. The appellant filed an application B-3 under Section 151 of the Code of Civil Procedure r/w Section 7 of the Act, 1890, in Misc. Case No. 516 of 2020; which was registered as Misc. Case No. 529 of 2021: Nirali Dixit vs. State of U.P., The prayer made was to amend/alter the order dated 15.12.2020 passed in Misc. Case no. 516 of 2020, by incorporating the word “Nirali Dixit wife of” before the words “Aditya Singh”, in the first line of the operative portion of the order dated 15.12.2020. The prayer in the application B-3 is being reproduced as under:-

“Wherefore, it is most respectfully prayed that this Hon’ble Court may graciously be pleased amend/altered the order dated 15.12.2020 passed by this Hon’ble Court in Regular suit no. 516 of 2020 by incorporating the word “Nirali Dixit wife of” before the words Aditya Singh, occurring in the first line of the operative portion of the order dated 15.12.2020 and such other orders which this Hon’ble Court may deem fit and proper in the interest of justice.”

7. The State of U.P. through District Magistrate, Lucknow/respondent no. 1, filed objection inter alia that the application B-3, was not maintainable and the relief prayed therein could not be legally granted.

8. The learned Additional District and Sessions Judge/Special Court P.C. Act, court no. 2, Lucknow, vide judgment and order dated 09.09.2021 rejected the application.

9. Learned court below held that Aditya Singh was appointed guardian of the minor, as per the provisions of the Act, 1890, after following the due procedure and on the legal considerations. The appellant-applicant wants to be appointed the guardian of the minor, without following the prescribed procedure, simply by adding her name before the name of Aditya Singh, in Misc. Case No. 516/2020, which was already decided on 28.09.2020. The prayer of the appellant cannot be granted under Section 151 C.P.C., as there is specific provision for appointment of guardianship under the Act, 1890 and without fulfilling the legal requirements.

10. Sri Prashant Chandra, learned Senior Counsel submits that Aditya Singh was married in Canada and in consultation with his wife-the appellant, he decided to take the minor along with him to Canada, as there was no other person to take care of the minor and to give proper care and look after his upbringing and to safeguard his welfare and accordingly the application dated 29.08.2020 under Section 7 of the Act, 1890 was made, specifically stating therein that to enable Aditya Singh to take his minor brother to Canada, to procure a dependent VISA, it was necessary to have a formal declaration of his being a guardian of the minor from the court. He submits that there was no contest to such application, except that an objection was filed by the State/District Magistrate Lucknow, emphasizing that the person seeking guardianship of the minor must ensure that the minor